[2017] KEELRC 1117 (KLR)
The court found that the claimant was employed by the respondent as a driver and that his employment was terminated without notice or hearing. The respondent failed to justify the termination as required under the Employment Act 2007. The court held that the termination was unfair, as it was not based on a valid...
Source-derived case information.
- Citation
- [2017] KEELRC 1117 (KLR)
- Parties
- Claimant: Charo Hamisi Hedison; Respondent: China Road & Bridge Corporation [Kenya]
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 543 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim partly allowed
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Notice Pay, Compensation for Termination, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charo Hamisi Hedison
Claimant
China Road & Bridge Corporation [Kenya]
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment was unfair under the Employment Act 2007.
- 2 Whether the claimant is entitled to compensation for unfair termination.
- 3 Whether the claimant is entitled to salary in lieu of notice and for days worked in December 2015.
Ratio Decidendi
The court found that the claimant was employed by the respondent as a driver and that his employment was terminated without notice or hearing. The respondent failed to justify the termination as required under the Employment Act 2007. The court held that the termination was unfair, as it was not based on a valid reason nor was fair procedure followed. The claimant was entitled to compensation for unfair termination, but only for five months' salary given his ten months of service, not the twelve months claimed. The court also awarded one month's salary in lieu of notice and salary for eleven days worked in December 2015. The claim for service charge was rejected as it was not applicable...
Court Disposition
claim partly allowed
Orders
- The respondent shall pay the claimant Kshs. 244,500 as compensation for unfair termination.
- The respondent shall pay the claimant Kshs. 48,900 as one month's salary in lieu of notice.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 543 OF 2016
BETWEEN
CHARO HAMISI HEDISON……..…………………………….CLAIMANT
VERSUS
CHINA ROAD & BRIDGE CORPORATION [KENYA]...RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Mburu Kariuki & Company Advocates for the Claimant
No appearance for the Respondent
_____________________________
JUDGMENT
1. The Claimant filed his Statement of Claim on 14th July 2016. He states he was employed by the Respondent Company as a Driver on 26th February 2015. His Contract was terminated by the Respondent without notice and hearing, on 11th December 2015. He earned a monthly salary of Kshs. 48,900 as of the date of termination. He feels termination was unfair, and prays for Judgment against the Respondent for:-
a) Salary for the month of December 2015 at Kshs. 48,900.
b) 3 months’ salary in lieu of notice at Kshs. 146,900.
c) Compensation for unfair termination the equivalent of 12 months’ salary at Kshs. 586,800.
d) Dues for days worked in December 2016.
e) Service Charge for the period worked.
f) Certificate of Service.
g) Costs and interest.
2. There is an Affidavit of Service filed by a Process-Server, showing Notice of Summons and Statement of Claim were served upon the Respondent and received by Miss Pauline on behalf of Respondent’s Human Resources Manager Mr. Cheng Peng. There is an Affidavit of Service on record indicating the Respondent was served with a Hearing Notice. The Respondent opted not to file any response or attend Court on any occasion. The Claimant gave evidence by way of formal proof, on 14th June 2007.
3. He adopted the contents of his Pleadings and Witness Statement and list of Documents, in his evidence.
The Court Finds:-
4. The Claimant has established he was employed by the Respondent Company as a Driver, earning a monthly salary of Kshs. 48,900.
5. Among the documents he relies on are his regular Employees’ Job Card, a Job Identity Card showing his designation as Dumper Driver, and pay slip issued in the name of the Respondent. These documents confirm the Claimant was an Employee of the Respondent.
6. There is no evidence to dispute his claim that he worked from 26th February 2015 to the date of termination, 11th December 2015. Termination was at the instance of the Respondent.
7. There was no notice and hearing before termination. The Respondent did not justify its decision under Section 43, 45 and 47 of the Employment Act 2007. The Claimant was not given a hearing. Termination was not based on valid reason and fair procedure. It was unfair.
8. The Claimant worked for 10 months. His prayer for 12 months’ salary in compensation for unfair termination is discordant with the length of his service with the Respondent.
9. He is granted the equivalent of 5 months’ salary in compensation for unfair termination at Kshs. 244,500.
10. He has not shown the Court any material, justifying the prayer for 3 months’ salary in lieu of notice.
11. He is granted 1 month salary in lieu of notice under Section 36 of the Employment Act 2007, at Kshs. 48,900.
12. He worked for 11 days in December 2015. He has no justification, in demanding salary for the whole of December 2015, in addition to salary for 11 days worked on that month.
13. He is granted salary for 11 days worked in December 2015 at Kshs. 20,688.
14. Service charge is paid to Employees serving in hotels and restaurants. The Respondent is a construction business. The Claimant has not shown that service charge was payable to him as a Dumper Driver, serving a road and bridge construction business. The prayer for service charge is rejected.
15. The prayers for Certificate of Service, Costs and Interest, are allowed.
IN SUM, IT IS ORDERED:-
a) Termination was unfair
b) The Respondent shall pay to the Claimant the equivalent of 5 months’ salary in compensation for unfair termination at Kshs. 244,500; 1 month salary in lieu of notice at Kshs. 48,900; and salary for 11 days worked in December 2015 at Kshs. 20,688 – total Kshs. 314,088.
c) Certificate of Service to issue.
d) Costs to the Claimant.
e) Interest granted at 14% per annum from the date of Judgment, till payment is made in full.
Dated and delivered at Mombasa this 27th day of June 2017.
James Rika
Judge