[2019] KEELRC 1088 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAKURU

CAUSE NO.125 OF 2015

CHERUIYOT M MUTAI...................................................................................CLAIMANT

CONSOLIDATED WITH

CAUSE NO.120 OF 2015

PATRICK OMBUI............................................................................................. CLAIMANT

AND

CAUSE NO.121 OF 2015

ROBERT MOSE BOKEA..................................................................................CLAIMANT

AND

CAUSE NO.126 OF 2015

JARED MACHUKA MACHUKI .....................................................................CLAIMANT

AND

CAUSE NO.221 OF 2015

TYSON MOCHERE NYAKUNDI ...................................................................CLAIMANT

VERSUS

VALLEY CONFECTIONARY LIMITED..................................................RESPONDENT

JUDGEMENT

The suits herein were consolidated under Cause No.125 of 2015 for hearing and determination. The claims are against the same employer and arising from the same cause of action.

The claimant, Cheruiyot Mutai was employed by the respondent in the year 2007 then known as Valley Bakery. Sometime in March or April, 2011 the respondent changed its name to Valley Confectionary and retained the claimant as a causal employee. On 30th April, 2012 the claimant was informed orally that his employment was terminated on account of redundancy. He was then earning sh.8, 280. 00 per month.

The claimant, Charles Simiyu Nalianya was employed by Valley Bakery in the year 2004 and then changed in March/April, 2011 to the respondent. he was then terminated in his employment earning ksh.11, 112. 00 per month.

The claimant, Tyson Mochere Nyakundi was employed by Valley Bakery in the year 1996 and who then changed to the respondent in March/April, 2011. His employment as terminated on account of redundancy while earning Ksh.8, 280. 00 per month.

The claimant Jared Machuki was employed by Valley Bakery in December, 1999 and in March/April, 2011 changed to the respondent. employment terminated on account of redundancy while earning ksh.8, 280. 00 per month.

The claimant Robert Mose Bokea was employed by Valley Bakery in June, 2007 which then changed to the respondent in March/April, 2011. The claimant’s employment was terminated on account of redundancy while earning ksh.9, 000. 00 per month.

The claimant, Patrick Ombui was employed by Valley Bakery in October, 1998 and then changed to the respondent in March/April, 2012. On 30th April, 2012 employment was terminated on account of redundancy.

The claimants claim is that employment remained unfairly and unlawfully and should be reinstated and where reinstatement is not issued payment of damages at 12 months’ pay together with notice pay equivalent to 3 months gross wage and service pay for years served and less what the claimant each received in terminal dues.

Patrick Ombui was paid Ksh.10, 000. 00 in terminal dues;

Robert Mose was paid Ksh.33, 000. 00 in terminal dues;

Jared Machuki was paid Ksh.38, 800. 00 in terminal dues;

Tyson Mochere Nyakundi in terminal dues paid not stated and in defence no work records on any payments made to him;

Charles Simiyu was paid Ksh.54, 000. 00 in terminal dues; and Cheruiyot Mutai was paid Ksh.30, 000. 00 in terminal dues;

In evidence Charles Simiyu testified that he was employed by the respondent as a bakery man until April 2012 when he was told that there was no work and he had to leave. That his department had no work for him. he was paid for days worked. Since the year 2004 he had not taken his annual leave and was not paid.

The claimant also testified that he worked for 8 hours each day and was paid Ksh.345. 00 per day. He worked for the respondent from 18th February, 2013 to 7th July, 2013 and was laid off due to redundancy. He was paid terminal dues all at ksh.17, 502. 00 and singed a discharge voucher. The trade union was present and agreed with the final dues computation.

The claimant also testified that the respondent and Valley Bakery are one and the same. The one company closed and the other opened but at different locations. It was just a change of name.

Cheruiyot Mutai testified that he was employed by the respondent form the year 2007 to 2012 when he was laid off due to redundancy. He was on a daily wage of Ksh.345. 00 and before such termination of employment there was no notice. He was paid final dues all at ksh.40, 000. 00 and singed a discharge voucher.

The claimant also testified that the respondent and Valley Bakery are the same and the directors are the same there was just a change of name. that he did not know the respondent has a certificate of registration different from Valley Bakery showing it was registered in the year 2004. He left Valley Bakery in the year 2011 and has since been with the respondent. Respondent issued him with letter of appointment dated 30th April, 2011.

Defence

The respondent in reply confirm the employment of the claimants save that such employment was from 1st May, 2011 to 30th April, 2012 under its name and not as Valley Bakery which is a different entity separate from the respondent having a certificate of registration dated 16th September, 2004.

The claimants were paid all the terminal dues and nothing owes. There are discharge vouchers to confirm payment. Such payments included notice pay, owing leave days and pay for days worked. The claims made should be dismissed.

Evelyn Gathoni Maina testified that she is the human resource officer of the respondent and conversant with the claims made by the claimants.

The respondent was incorporated on 16th September, 2004 and issued with certificate Number C.112354. the claimants were employed on 1st May, 2011 and employment terminated following a redundancy and upon payment of all terminal dues. the claims that the claimant were employed by the respondent before 1st May, 2011 is not correct as the respondent has never operated under any other name and has no relations with Valley Bakery as alleged..

Dominic Odhiambo is an electrician with the respondent and shop steward for Bakery Confectionary Food Manufacturing and Allied Workers Union, a trade union representing employees under the employment of the respondent. as an employee and member of the trade union he it was formed in the year 2012 and after the claimants were in the employment of the respondent. there was a redundancy declared and the claimants laid off and he witnessed the payment of terminal dues in settlement.

At the close of the hearing both parties filed written submissions.

The claimants submitted that there was unfair termination of employment contrary to the provisions of section 41 and 44(4) of the Employment Act as there was no notice issued and the summary action taken to end employment was not justified. No certificates of service were issued.

The claimants also submitted that they worked for Valley Bakery before there was change of name to the respondent and the owing terminal dues for the entire period of em0loymetn under both names is due. the claimants did not apply for work with the respondent, they were just issued with appointment letters under the new name meaning the directors behind the two names were the same. The reliefs sought are due.

The claimants have relied on various case authorities to support their submission and which shall be put into account.

The respondent submitted that the claims made by the claimant are on the basis that there was employment before the appointment letters issued by the respondent as there was a relationship with Valley Bakery which is not correct as the respondent is an independent entity registered on 16th September, 2004.

There was a redundancy and the respondent laid off its employees and paid for due notice. This was not a case for the application of section 41 and 44 of the Employment Act as held in Kenya Plantation & Agricultural Workers Union versus Sotik Highlands Tea Estate Limited [2016] eKLRthat dismissal from employment was founded on justifiable grounds of redundancy. The claimant’s member had been lawfully terminated in employment.

Determination

In the pleadings, the claimants have attached work records with the respondent.

Patrick Ombui was employed by the respondent and issued with letter of appointment dated 30th April, 20111 as a security officer;

Robert Mose Bokea was employed in April, 2011 as a casual employee;

Jared Machuki employed on 30th April, 2011 as a bakery worker;

Tyson Muchere Nyakundi was employed in April, 2011 as a casual employee;

Charles Simiyu Nalianya was employed in April, 2011 as bakery production; and

Cheruiyot Mutai was employed as a bakery worker on 30th April, 2011.

The employment of the claimants by the respondent is therefore confirmed.

The dispute is that there was unfair termination of employment and none payment of full terminal dues following the declaration of redundancy.

The claimant’s case is that they were employed under Valley Bakery and which changed to the respondent entity. However, the respondent has attached its certificate of registration dated 16th September, 2004. This is an entity on its own right and an appropriate employer as defined under the law, section 2 of the Employment Act, 2007;

“employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;

Where the claimants were therefore employed by any other entity other than the respondent, such entity ought to have been enjoined in these proceedings. This is not the case.

Where the claimants had any claims with regard to Valley Bakery, an entity different and separate form their employer and employment commencing with the respondent from April, 2011 such claims ought to have been addressed within the meaning of section 90 of the Employment Act, 2007. As Valley Bakery is not party herein, any matter arising from therefrom does not relate to proceedings herein.

Following a redundancy within the respondent entity, section 40 of the Employment Act, 2007 apply. For the duration of employment, the claimants were entitled to notice pay, pay for leave days earned and severance pay for each full year served.

At the time of termination of employment the claimants were on a daily wage of ksh.345. 00. There is no claim of underpayment. The daily wage is therefore taken as given.

Where employment terminated following redundancy a reasonable notice pay was Ksh.8, 97. 00 save for Charles Simiyu and Robert Mose who had a higher wage. For the period of service with the respondent, the severance pay from April, 2011 to 30th April, 2012 this is a period of one year and severance pay is 15 days minimum amounting to ksh.4, 485. 00.

In this regard, in the Memorandum of Claim the following averments are made;

Cheruiyot Mutai was paid ksh.30, 000. 00 in terminal dues;

Charles Simiyu was paid ksh.54, 000. 00; Jared Machuki was paid Ksh.38, 800. 00; Robert Mose was paid ksh.33, 000. 00; and Patrick Ombui was paid Ksh.10, 000.

Save for Tyson Mochere whose terminal dues are not stated and no work records on his terminal dues payment are filed by the respondent, all the other claimants received terminal dues for the period of employment which are generous. The court tabulation of the owing dues for the period of service with the respondent and taking into account notice pay as due, severance pay as due, and pay for leave days, the payments set out above are way above the basic minimum.

With regard to Tyson Mochere Nyakundi, in his further statement he alleges that he was employed as a bakery worker earning ksh.10, 000. 00 per month and which was increased to ksh.15, 000. 00 per month.

The further statement is not baked up with an amendment to his claim filed on 24th July, 2015. The Verifying Affidavit attached to the claim confirm that this is the statement of claim. However, the respondent has not attached any work records with regard to the payment of terminal dues to the claimant. Save for the letter of employment dated 30th April, 2011 which sets out that the claimant was earning ksh.345. 00 daily, there is no other evidence of payment of terminal dues. he is therefore entitled to notice pay of Ksh.8,970. 00 and a severance pay of Ksh.4,485. 00 and 21 days’ pay for leave days due all being ksh.7,245. 00 making terminal dues all at ksh.20,700. 00.

Accordingly, the claims made by Cheruiyot Mutai, Patrick Ombui, Robert Mose Bokea, Jared Machuki, Charles Simiyu Nalianya are found without merit and are hereby dismissed. Tyson Mochere Nyakundi is hereby awarded Ksh.20,700. 00 in terminal dues. each party shall bear own costs.

Delivered in open court at Nakuru this 11th July, 2019.

M. MBARU JUDGE

In the presence of:

Court Assistants: …………………………… & ……………………………

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