[2022] KEELRC 1149 (KLR)

Chemiati v Gillys Security & Investigation Services Ltd (Cause 2382 of 2016) [2022] KEELRC 1149 (KLR) (30 June 2022) (Judgment)

Neutral citation: [2022] KEELRC 1149 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 2382 of 2016

AN Mwaure, J

June 30, 2022

Between

Joseph Wamalwa Chemiati

Claimant

and

Gillys Security & Investigation Services Ltd

Respondent

Judgment

1. This matter was originated by way of the Claimant’s (Mr. Joseph Wamalwa Chemiati) amended Memorandum of Claim dated 19th of September 2020. It sought to amend the Memorandum of Claim that was filed on the 10th of November 2016.

2. In the Amended Memorandum of Claim, the Claimant seeks that judgment be entered against the Respondent for damages and dues as enumerated below: Total Underpayments amounting to Ksh. 331,208. 44

Total Unpaid House Allowance amounting to Ksh.82, 459. 64

Total Annual Leave Pay amounting to Ksh. 50,0158. 59

Public Holiday Payments amounting to Ksh. 32,447. 84

Overtime Pay amounting to Ksh. 547, 092

NSSF Unremitted Deductions amounting to Ksh.800

Notice Pay amounting to Ksh. 14, 054. 27

Compensation for Unlawful Termination amounting to Ksh. 168, 651. 24

Costs of the suit

Interests on the above until payment in full

Any other relief that this Honourable Court may deem fit to award under the circumstances.

The Claimant’s Case 3. The Claimant, an adult of sound mind avers that he was employed on contractual basis by the Respondent on or about the month of November 2011 as a night security guard ( a watchman) and was terminated from employment on the 29th of February 2016.

4. On the night of the said date of termination, the Claimant avers that he had reported to duty at Nyayo-Estate and while executing his duties, the Respondent’s supervisor came to his work station and informed him without any reasonable cause that his employment had been terminated and that he was free to leave at the wee hours of the night or wait until morning to leave.

5. The Claimant avers that he went to the Respondent’s Office where he met his colleagues who had been terminated. They had seemingly gone to the office to inquire why they had been terminated.

6. It is the Claimant’s case that he was not given any reason for the said termination. The Respondent is said to have told the Claimant that his services had been terminated and that he should go home and await communication as to redeployment. When it dawned upon the Claimant that the redeployment promise was false, he was forced to write a letter to the Respondent seeking to be paid his terminal dues. The letter, he says, was ignored.

7. Visits were made to the Respondent’s offices by the Claimant but they were all in vain as in mid-2016 they were cut short when he was blocked at the gate by security guards who told him that they had express instructions to restrain him from getting into the building.

8. The Claimant submits that the Respondent blatantly disregarded the law as the Respondent underpaid him as the Minimum Wage Order was not adhered to and that the statutory deductions were never remitted but were deducted from his salary.

The Respondent’s Case 9. In its Response to the Memorandum of Claim the Respondent denies that at all material times relevant to this cause the Claimant was its employee working as a night security guard (a watchman) and stationed in Nairobi and puts the Claimant to strict proof thereof.

10. The Respondent avers that if at all the Claimant was employed by the Respondent, then the Claimant absconded from his duties with no good reason and also failed to give the Respondent one month’s notice before terminating the employment contract thereby breaching the terms and conditions of the contract of employment.

11. The Respondent’s witness (Eugene Samuel Chisira) in his witness statement as the Branch Manager of the Respondent Company states that he knew the Claimant in this case as he worked as a security guard stationed at Nyayo-Estate in Embakasi which had contracted the Respondent Company to provide security services for two years between 2014 and 2016.

12. The witness further avers that the Respondent Company informed the Claimant that he and other guards would be redeployed elsewhere since the company’s contract with Nyayo-Estate had been terminated. As such, they were asked to report to the Human Resource Manager for redeployment.

13. It is the witness’ submission that the Claimant intentionally absconded from duty, never worked overtime and took all his leave days. He further submits that the Claimant was never underpaid.

14. The Respondent through its witness avers that it fulfilled all its statutory obligations and paid the Claimant’s NSSF deductions as required by law. It thus declares that the Claimant is not entitled to the prayers sought before this Honourable Court.

Issues for Determination 15. After having critically considered the pleadings and submissions made by the parties to the case, this Honourable Court coins the following as issues for determination:a.Whether the Claimant was an employee of the Respondent.b.Whether the Claimant was unfairly terminated or he resigned from employment.c.Whether the Claimant is entitled to the prayers he sought before this Court.a.Whether the Claimant was an employee of the

Respondent 16. For the purposes of Section 2 of the Employment Act an employee is defined as a person employed for wages or a salary and includes an apprentice and indentured learner. Also quoted in Omusamia vs Upperhill Springs Restaurant (Cause 852 of 2017) [2021] KEELRC 3 (KLR) the provision also defines a contract of service as an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service.

17. There is evident contradiction in the Respondent’s response to the Statement of Claim and the Respondent’s Witness Statement as to the employment of the Claimant. In the response, the Respondent Company denies the allegation that at all material times relevant to this cause the Claimant worked for it as a night guard while in the respondent’s witness statement at paragraph 2 the Branch Manager of the Respondent Company accepts that he knew Joseph Wamalwa Chemiati (the Claimant) as he worked as a security guard stationed at Nyayo-Estate in Embakasi.

18. The documents placed before this Honourable Court do not contain any Contract of Employment between the Claimant and the Respondent. As per Section 10 (7) of the Employment Act the employer is bound to proof of terms in the event of non-production of a written contract of employment. This Court relies on Edward Isedia Mukasia vs Eldo Supermarket Ltd [2015] eKLR where Learned Judge quoted Section 10 (7) finding that the Claimant was an employee of the Respondent.

19. Section 10 (7) of the Employment Act provides as follow:Section 10 (7)“If any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.”

20. This Court, having considered the witness statement and the employment laws, therefore finds that the Claimant (Joseph Wamalwa Chemiati) was an employee of the Respondent Company (Gillys Security & Investigation Services Ltd.) and also as per the pay slips produced as exhibits by the Respondent.

Whether the Claimant was unfairly terminated or he voluntarily resigned 21The second issue for determination is whether the Claimant was wrongfully, unfairly and unlawfully terminated by the Respondent or he voluntarily resigned from employment. Section 45 of the Employment Act provides for cases of unfair termination as follows:(1)No employer shall terminate the employment of an employee unfairly.(2)A termination of employment by an employer is unfair if the employer fails to prove―(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason―i.related to the employees conduct,ii.capacity or compatibility; oriii.based on the operational requirements ofiv.the employer; and(c)that the employment was terminated in

accordance with fair procedure 22. It is the Claimant’s case that the Respondent told him that his services had been terminated and that he should go home and await communication as to redeployment which communication he avers never took place. The Respondent on the other hand depones that the Claimant absconded from his duties without any good reason and also failed to give the Claimant one month notice before terminating the employment contract thereby breaching the terms and conditions of the contract of employment.

23. The Claimant claims that on 29th February 2016 the supervisor of the Respondent informed him that his employment had been terminated.

24. The Court finds a gap in that the Claimant the following day on March 1, 2016 he wrote a resignation letter. He says in his evidence in Court that he wrote the resignation letter because he wanted to be paid his dues. The fact that he wrote his resignation letter a day after he claims he was told to leave employment seems to be contradictory. If at all he wrote it because his dues were being withheld it was too soon to ascertain that his dues were being withheld since it was only one day later. It seems the Claimant willingly wrote his resignation letter and probably later changed his mind and claimed he was unlawfully terminated. In the evidence he adduced in Court the Claimant says he kept following his dues for two weeks and he got tired and so he wrote the resignation letter. That is a contradiction because he wrote the resignation letter a day after the day he claims he was terminated from his employment.

25. Indeed the Respondent says that on February 29, 2016 he informed the supervisors to inform the employees not to report to Nyayo Estate as their contract with NSSF had been terminated. He asked them to ask the employees to report to Human resource office for re deployment. He says that all employees reported to the human resource except the Claimant. He says on March 1, 2016 the Claimant wrote the resignation letter.

26. The Court is well persuaded that the Claimant voluntarily resigned from his employment for reasons only best known to him. Part of his resignation letter reads:-“I hereby informing your office that I am now resigning work from your company” he addressed the letter to the Human Resource Office.”

27. As held in the case of Edwin Beiti Kipchumba vs National Bank of Kenya Ltd (2018) eKLR resignation is a unilateral act on the part of the employee. There is no provision in the employment Act suggesting that its efficacy is dependent upon any action of the employer.”

28. In Herbert Wafula Waswa vs Kenya Wildlife Services Civil Appeal the Court held that:“Taken cumulatively the Appellant’s actions after suspension did not suggest the plight of an employee being forced out of employment…”In the same way in this case there is no action or omissions by the employer that portrays that the Claimant was forced to resign. So whatever the motive the Claimant tendered his resignation on 1st March 2016 from the Respondent’s employment.

29. Having considered the authorities cited by the Claimant in his submissions like Mulano Electronics Limited vs Dickson Nyasi Muhajo (2021) eKLR where the Court held that the employer failed to prove abandonment. The difference however from those authorities and this one is that in this case the Claimant resigned from employment and his resignation letter is in writing.

30. Having considered the pleadings and submissions as well as the evidence adduced by the respective witnesses before the honorable Court the Court finds that the Claimant failed to prove unfair termination. Section 47(5) of Employment Act 2007 provides that a complaint of unfair termination of employment or wrongful dismissal, the burden of proving unfair termination of employment or wrongful dismissal has occurred rests on the employee, while burden of justifying grounds for termination of employment or wrongful dismissal shall rest on the employer.

31. Having failed to prove his claim for wrongful or unlawful termination the Court has come to the conclusion that the Claimant resigned from his employment. The claim for wrongful, unfair and unlawful termination has not been proved and so the same is dismissed accordingly.

32. Having found the Claimant was not unlawfuly or unfairly dismissed the Court would still interrogate whether he was entitled to any terminal dues prayed in the claim.a.He has prayed for underpayments. He prays for a total of Kshs 331,208/44 as underpayments. Unfortunately there are no records to establish what he was being paid except two months August 2013 and one more which is quite unclear (page 16) of Claimant’s amended Memorandum of claim. That would be Kshs 4232/45x2 = 8464. 90 which I award.b.House allowance – Again without the benefit of the pay slips of the Claimant, I cannot award house allowance in abstract except for the referred two months amounting to Kshs 1630. 70x2 which I award 3261. 40. c.Leave pays The Respondent did not produce records to confirm the Claimant took his leave or payment in lieu of leave so I award him Kshs 50,158. 59. d.Public Holidays- No documentation and so is not proved and so is declined.e.Overtime Pay- No documentation or proof of the same and so is declined.f.NSSF unremitted deductions2012 January 400/-2013 July 400/-Total 800g.Notice Pay was not payable as the Claimant resigned so is declined.h.The compensation for unlawful termination is not payable as the Court held that the Claimant was not unlawfully terminated.i.The Court finds the Claimant having worked for the Respondent for over 5 years and considering his situation in life I will not award costs. Each party will bear their costs.J.Interest is awarded at Court rates from this date of judgment till full payment.k.The total dues to the Claimant are Kshs 62,685/10.

Orders accordingly.DELIVERED, DATED AND SIGNED IN NAIROBI THIS 30TH DAY OF JUNE, 2022. ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of court fees.ANNA NGIBUINI MWAUREJUDGE