[2018] KEELRC 1379 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 1190 OF 2014

CHRISTOPHER M. MURAYA..........................................................CLAIMANT

- VERSUS -

JETLINK EXPRESS LIMITED...................................................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 17. 07. 2014 through Muthaura Mugambi Ayugi & Njonjo Advocates. The claimant prayed for judgment against the respondent for:

a) The portion of withheld salary and terminal dues per paragraph 14 of the memorandum of claim being Kshs. 4, 008, 000. 00 from December 2012 to November 2013 at Kshs.334, 000. 00 x 12; Kshs. 102, 460. 00 withheld productivity bonus at Kshs. 10 per mile for 10246 miles; one month pay in lieu of notice Kshs.334, 000. 00; 14 unutilised leave days Kshs.233, 800. 00; and house allowance at Kshs.50, 100. 00 per month for 24 months making Kshs.1, 202, 400. 00.

b) Damages for wrongful termination under section 49 of the Employment Act, 2007 for breach of contract.

c) Interest at Court rates.

d) Any other relief that the honourable Court may deem fit and just to grant.

Despite service the respondent did not enter appearance or file a response to the memorandum of claim or attend the hearing. The claimant testified to support his case.

By the letter dated 30. 04. 2009 the respondent appointed the claimant to the position of a First Officer effective 17. 02. 2009 at Kshs. 216, 000. 00 per month and a taxable productivity bonus of Kshs. 5 per mile. The claimant was to serve on probationary for 6 months. The parties also signed the employment agreement. The claimant was promoted from a First Officer to a Captain in November 2011 and his monthly pay was increased to Kshs. 334, 000. 00 with a taxable productivity bonus of Kshs.10 per mile.

The claimant’s testimony and case is that in mid November 2012 the respondent advised the claimant to take leave from 28. 11. 2012 to 10. 01. 2013 because the respondent would cease operations for a month and the claimant would resume duty on or about January 2012. The claimant did not receive any further communication on the status of his employment.

The Court has considered the memorandum of claim, the evidence and the submissions on record. The Court makes findings as follows:

1) The claimant’s evidence shows that he lost his employment because the respondent closed down its operations. The Court returns that the termination amounted to redundancy and section 40 of the Employment Act, 2007 and the contractual terms on redundancy applied. The contract does not provide for redundancy. However, clause 16 of the employment agreement states thus, “16. If the Company becomes bankrupt, is placed in receivership or howsoever loses its ability to conduct business in the ordinary course (“Business Incapacity”), the Company may terminate this Agreement and the employment created herein without notice and without payment of compensation either by way of earnings or damages of any kind whatsoever.” Clause 14 stated that the contract could be terminated without cause provided the agreed pay in lieu of the termination notice was effected. The Court finds that the provisions applied. The claimant was to consider himself terminated when at the end of January 2013 he was not recalled to work. The Court finds that the claimant is entitled to one month pay in lieu of the termination notice per clause 14 of the employment agreement which provided for notice pay as prescribed in law and being 28 days under section 35 of the Employment Act, 2007. Accordingly, for the constructive termination without notice, the claimant is awarded Kshs.334, 000. 00.

2) The claimant prays for compensation under section 49 of the Act for unfair termination. The Court finds that the respondent failed to comply with the procedure in section 40 of the Act on redundancy. The Court has considered clause 16 of the employment agreement purporting to oust the claimant’s statutory right to allege unfair termination and to seek compensation. The Court returns that the parties could only contract within the minimum statutory terms and conditions of the contract of employment. The Court has considered the period the claimant had served, he desired to continue in employment and he did not contribute to his termination. The Court has considered the strict terms of the employment contract which clearly notified the claimant about the vulnerability of losing the job including the one purporting to oust compensation in any event. The Court returns that 3 months’ compensation under section 49 of the Act will meet the ends of justice and the claimant’s last gross pay being is fixed at Kshs. 518, 968. 00 per September Pay slip on record and he is awarded Kshs.1, 556, 904. 00.

3) The Court returns that the claimant is entitled to pay for unutilised 14 leave days making Kshs. 233, 800. 00 as prayed for.

4) The house allowance was claimed on the basis of regulation 4 of the Regulation of Wages (General) Order placing minimum house allowance at 15% of basic payable salary. It was not shown that the Order applied to the claimant as a Captain. Further the parties as per clause 5 of the appointment letter agreed upon a consolidated monthly salary as envisaged in section 31 of the Employment Act, 2007 so that the pay had a sufficient inclusive provision for rent. The prayer will therefore fail.

In conclusion judgment is hereby entered for the claimant against the respondent for:

1) The respondent to pay the claimant a sum of Kshs.2, 124, 704. 00 by 01. 10. 2018 failing interest to be payable thereon at Court rates from the date of the judgment until full payment.

2) The respondent to pay the claimant’s costs of the suit.

Signed, dated and delivered in court at Nairobi this Friday 27th July, 2018.

BYRAM ONGAYA

JUDGE