[2015] KEELRC 700 (KLR)
The court found that the Respondent failed to provide any reason or evidence for the termination of the Claimant's employment, nor did it participate in the proceedings. The Claimant's evidence established that he was dismissed without notice or valid reason, and likely due to a work-related injury, which is not a...
Source-derived case information.
- Citation
- [2015] KEELRC 700 (KLR)
- Parties
- Claimant: Charles Odongo Gumba; Respondent: Habo Group of Companies Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 468 of 2014
- Procedural Posture
- Employment Cause / Final Judgment
- Outcome
- Claim allowed for unfair and unlawful termination. Judgment entered for the Claimant.
- Legal Topics
- Unfair Termination, Summary Dismissal, Compensation for Termination, Notice Pay, Annual Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Odongo Gumba
Claimant
Habo Group of Companies Limited
Respondent
Procedural Posture
Employment Cause / Final Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair and unlawful.
- 2 Whether the Claimant is entitled to compensation, notice pay, salary arrears, and annual leave pay.
- 3 Whether the Respondent complied with statutory requirements for fair termination.
Ratio Decidendi
The court found that the Respondent failed to provide any reason or evidence for the termination of the Claimant's employment, nor did it participate in the proceedings. The Claimant's evidence established that he was dismissed without notice or valid reason, and likely due to a work-related injury, which is not a lawful ground for termination. The Respondent's failure to comply with statutory requirements under the Employment Act 2007 rendered the termination unfair and unlawful. The Claimant was therefore entitled to compensation for unfair termination, salary arrears, accrued annual leave, and notice pay. The court declined to order an investigation into underpayment due to lack of...
Court Disposition
Claim allowed for unfair and unlawful termination. Judgment entered for the Claimant.
Orders
- The termination of the Claimant's contract of employment was unfair and unlawful.
- The Respondent shall pay the Claimant within 30 days: 12 months’ salary in compensation at Kshs. 120,000; salary for March 2014 at Kshs. 10,000; accrued annual leave at Kshs. 16,153; and 1 month salary in lieu of notice at Kshs. 10,000, totaling Kshs. 156,153.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NUMBER 468 OF 2014
BETWEEN
CHARLES ODONGO GUMBA ……………………………CLAIMANT
VERSUS
HABO GROUP OF COMPANIES LIMITED ……………… RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
___________________________
Mr. Anaya Advocate instructed by Matete Mwelese & Company Advocates for the Claimant
No appearance for the Respondent
_____________________________
ISSUE IN DISPUTE: UNFAIR AND UNLAWFUL TERMINATION
AWARD
[Rule 27 [1] [a] of the Industrial Court [Procedure] Rules 2010]
1. The Claimant filed his Statement of Claim on the 6th October 2014. He states he was employed by the Respondent Company as a Turn Boy, on 18th May 2012, earning a monthly salary of Kshs. 10,000. His contract of employment was terminated by the Respondent on the 16th April 2014, without notice or reason. He prays the Court to grant him, against the Respondent, the following orders:-
2 months’ salary in lieu of notice at Kshs. 20,000.
Salary for March 2014 at Kshs. 10,000.
Accrued [annual leave?] for 2 years at Kshs. 20,000.
12 months’ salary in compensation for unfair termination at Kshs. 120,000
Total……………………….…. Kshs. 170,000
e] Investigation and calculation of underpayment of wages by the Respondent.
d] Costs.
2. The Respondent though served with the Court Summons, Notices of Hearing, Mention, and all the relevant Pleadings, did not attend Court on any occasion, or file any response to the Claim. Mr. Gumba gave evidence and wound up his case on the 26th July 2015.
3. He testified he joined the Respondent in 2010, initially earning a monthly salary of Kshs. 6,500. He was formally employed through a letter of appointment dated 18th May 2012, and his salary adjusted to Kshs. 10,000, on 23rd May 2012. His contract was terminated in April 2014. He was not given a specific reason by the Respondent for the decision; he was simply told, ‘’ Kazi hakuna,’’ [Kiswahili for ‘’ no work.’’].
4. He had been involved in an accident on 18th July 2013, in the course of his work, while on a journey from Kampala in Uganda back to Mombasa. He was treated at Makindu and later at Makadara [Mombasa Hospital], being discharged on 8th August 2013. He continued with treatment. He was still on medication as of 14th April 2014 when the termination decision was made. He was not paid any dues. Termination was very painful. It was unfair. The Claimant adopts his Pleadings, Documents and Submissions in urging the Court to allow the Claim.
The Court Finds:-
5. The Pleadings, Evidence, Documents and Submissions given by the Claimant are without challenge from the Respondent. It is fair to conclude the Claimant was employed by the Respondent Company initially in the year 2010, on a salary of Kshs. 6,500 per month. He was employed formally through a letter of appointment dated 18th May 2012, and his salary adjusted to Kshs. 10,000 per month. He was involved in a road traffic accident along the Mombasa- Kampala Highway in the course of his work, on the 18th July 2013. He was injured, hospitalized and treated for the period leading to the termination of his contract of employment, on the 14th April 2014.
6. Section 41, 43 and 45 of the Employment Act 2007 require the Employer to prove reason or reasons for termination of the contract of employment, show validity of the reason or reasons, and demonstrate the process is fairly carried out. The Respondent, by keeping away from the proceedings, has failed to fulfill any of these obligations. The evidence by the Claimant that he was dismissed without notice or reason must stand. He appears to have been dismissed on the ground that he was injured while at work. His injury was deemed to diminish his productivity. He was a burden to the Respondent. This, in the absence of any evidence or material from the Respondent, would seem to the Court to be the thinking underlying the termination decision. The Court is satisfied the Claimant has established his case, and merits remedial action.He is allowed the prayer for compensation, notice pay, salary arrears, and annual leave pay. Annual leave is granted for 42 days [21 days each year] at the rate of Kshs. 384 per day. The Court does not have evidence of underpayment, and ground, to order an investigation of the alleged underpayment of wages.
IT IS ORDERED:-
Termination of the Claimant’s contract of employment was unfair and unlawful.
He is, within 30 days of the delivery of this Award, to be paid by the Respondent 12 months’ salary in compensation at Kshs. 120,000; salary for March 2014 at Kshs. 10,000; accrued annual leave at Kshs. 16,153; and 1 month salary in lieu of notice at Kshs. 10,000- total Kshs. 156,153.
Costs to the Claimant
Dated and delivered at Mombasa this 31st day of July 2015
James Rika
Judge