[2021] KEELRC 1045 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND RELATIONS COURT AT NAIROBI

CAUSE NO. 1309 OF 2016

(Before Hon. Lady Justice Christine N. Baari)

DANIEL OTIENO SORO..................................................CLAIMANT

VERSUS

MORRIS COMPANY (2004) LIMITED.......................RESPONDENT

JUDGMENT

1. The claimant filed a memorandum of claim dated 23rd June, 2016, and filed in court on the 1st of July, 2016, through Okenyo Omwanza & Company Advocates.

2. The claimant’s case is that the respondent employed him as a motor rewinder on the 4th of October, 2014, at a monthly salary of Kshs.22,000/=

3. It is the claimant’s further case that he was summarily dismissed by the respondent on the 25th of April, 2016, on ground of gross misconduct.

4. He states that his salary had delayed and on asking the respondent to pay him, he was assaulted and dismissed from employment.

5. It is the claimant’s case that he was not given a hearing prior to the dismissal and neither was he given his full pay, but instead only paid Kshs.18,000/= and asked to leave.

6. The claimant’s further case, is that since his first day of employment, he worked from 7am to 7pm and Monday to Saturday each week.

7. He further states that he was neither paid an overtime allowance, leave allowance nor was he given house allowance or in the alternative, a place to live.

8. It is his further case that though he was blessed with a baby during his time with the respondent, he was not allowed to take his statutory 14 days paternity leave.

9. It is the claimant’s case that his summary dismissal was wrongful, illegal and unlawful, as the same was done without regard to the Employment and labour laws applicable in Kenya.

10. His prayer is that the court declares his dismissal unlawful and wrongful and order that he be paid:

i. Kshs. 1, 327, 520/= in damages

ii. 12 months salary as compensation for wrongful dismissal

iii. Unpaid leave for 1. 5 years at Kshs. 22,000 per year totaling to Kshs. 33,000/=

iv. Pay in lieu of notice at Kshs. 22,000/=

v. Overtime allowance of Kshs. 207,360/=

vi. Unpaid house allowance for 18 months of service of Kshs. 132,000

11. The respondent filed its memorandum of response on the 23rd August, 2016, through Bryan Moturi & Associates Advocates, wherein, it wholly denied the claimant’s allegations

12. The respondent pleaded that the claimant was summarily dismissed for gross misconduct and that he had agreed to the terms of service offered by the respondent, including the hours of work and the monthly wages that he received from the respondent

13. The respondent’s prayer to this court is that the claimant’s suit be dismissed with costs

14. The claimant testified to support his case.

15. The respondent did not present any witnesses and no party put in submissions in the matter.

16. The court identified the following issues for determination:

i. whether the dismissal of the claimant was wrongful and unlawful; and

ii. whether the claimant deserves the reliefs sought

Whether the dismissal of the claimant was wrongful and unlawful:

17. To determine whether the dismissal of the claimant was wrongful and unlawful, the court has first to determine whether he was at all an employee of the respondent

18. During the hearing, the claimant did not produce a letter of appointment to show that he was an employee of the respondent but only stated in his statement which he produced under oath, that he had entered into an ‘express and/or implied’ contract with the respondent

19. Attached to the claimant’s witness statement, was a certificate of service issued to him by the respondent upon dismissal and a pay slip of his last pay. These documents were both uncontroverted and were evidence enough that the claimant was in the employ of the respondent

20. The court thus finds and hold that indeed the claimant was an employee of the respondent. In any event, Section 8 of the Employment Act, 2007, obligates an employer to issue a written contract of service to an employee and therefor the claimant could not issue one to himself. In the case of Robai Musinzi Vs Mohammed Safdar Khan (2012) eKLR,the court held that it was important that employers seek at the earliest opportunity to reduce oral contracts into writing.

21. This goes to say therefore, that a verbal contract is a contract that can confer rights and duties to both the employer and the employee and can be enforced

22. Having determined that the claimant was an employee of the respondent, the next question for the court to answer, is whether the summary dismissal of the claimant was wrongful within the meaning of Section 41(1) of the Employment Act, 2007.

23. The evidence is that the claimant exhibited a certificate of service and a letter of summary dismissal dated 25th April, 2016.

24. Although the letter of dismissal refers to charges against the claimant, nothing shows that a notice to show cause or any charges were preferred against the claimant in whatever form for which he was required to respond, prior to his dismissal and no reasons were given for the said summary dismissal contrary Section 41(2) of the Employment Act, 2007.

25. Further, no evidence of a disciplinary hearing was produced or alluded to by the respondent

26. The court finds and holds that the dismissal of the claimant was wrongful and unlawful, both in procedure and in substance, as he was not issued with a notice of the allegations leveled against him nor was he given a disciplinary hearing to allow him to make representation on the allegation of gross misconduct, which he only got to know about on receipt of his letter of dismissal, contrary to the requirements of Sections 41 and 45 of the Employment Act, 2007.

27. The claimant’s evidence which is unrebutted, was that he was dismissed for asking to be paid his salary and which request resulted in an assault evidenced by an occurrence book (OB) report made at the Nairobi Area Police Station on the 22nd of April, 2016.

Whether the claimant deserves the reliefs sought

28. The holding that the claimant was wrongfully dismissed, entitles him to compensation as is envisaged under Section 49 of the Employment Act, 2007

29. The claimant has prayed that this court awards him damages, a 12-month salary in compensation for wrongful dismissal, unpaid leave, one-month payment in lieu of notice, overtime allowance, unremitted Statutory deductions, unpaid house allowances and costs of the suit.

12 Months’ Salary in Compensation

30. In determining an award of compensation, the court is guided by the provisions of Section 49 of the Employment Act, 2007.

31. The claimant according to evidence adduced was in the service of the respondent for about a year and a half. The pay slip adduced in evidence indicated that he is an electrician and according to a copy of his identity card, he is 31 years old.

32. Going by the provisions of Section 49 of the Employment Act, 2007, it is the opinion of the court that the claimant is young and has a marketable career and thus has an opportunity to secure comparable employment. The claimant has also not been in the service of the respondent for long and the court is not convinced that he has established a case for maximum compensation, instead, the court awards him 3 months’ salary in compensation for wrongful and unlawful dismissal.

Unpaid leave

33. Section 28 of the Employment Act, 2007, entitles an employee to 21 days paid leave for every year of service. Leave forms are a record expected to be in the custody of an employer.

34. The respondent did not produce any record to demonstrate that the claimant took his leave days during his time in its employment or in the alternative, that a payment was made to him in lieu thereof.

35. The court finds and holds that the claimant is entitled to payment of accrued leave in the one and a half years that he worked for the respondent

Claim for Damages

36. Having awarded the claimant a 3 months’ salary as compensation for wrongful dismissal and for reason that the claimant has not alleged violation of his constitutional rights, the claim for damages fails and is hereby dismissed.

One month’s salary in lieu of notice

37. The claimant was evidently not issued with any notice prior to the dismissal contrary to Section 35 of the Employment Act and for this reason the court awards him a one-month salary in lieu of notice.

House allowance

38. The claimant produced a pay slip for March, 2016, which indicated his basic salary as Kshs. 22,000/=. The said pay slip did not provide for house allowance and neither did the respondent’s response to the claim or in cross-examination adduce any evidence to show that the claimant was indeed paid house allowance.

39. Section 31(1) and (2) of the Employment Act provides as follows as regards payment of house allowance:

(1) An employer shall at all times, at his own expense, provide reasonable housing accommodation to each of his employees either at or near to the place of employment or shall pay to the employee such sufficient sum, as rent, in addition to the wages or salary of the employee, as will enable the employee to obtain reasonable accommodation.

40. In this regard therefor, the court finds and holds that the claimant was never paid house allowance and is hereby warded the same at Kshs.59,400 being 15% of the basic salary which his pay slip indicated as Kshs. 22,000/= for 18 months of service

Overtime Allowance

41. The claimant’s case was that he worked from 7a.m to 7p.m, Monday to Saturday of every week of his time with the respondent without payment of an overtime allowance.

42. The respondent rebutted this allegation and indicated that the allowances formed part of the terms and conditions of service agreed between him and the respondent.

43. Further, the claimant did not adduce any evidence to prove that he worked beyond the hours agreed upon between him and the respondent and this claim therefor fails.

44. In conclusion, judgment is hereby entered for the claimant against the respondent in the following terms:

1) A declaration that the dismissal of the claimant from the service of the respondent was wrongful.

2) The respondent to pay the claimant:

i. One-month salary in lieu of notice at Kshs. 22,000/=

ii. Unpaid leave days at Kshs. 33,000/=

iii. 3 months salary as compensation for wrongful dismissal amounting to Kshs.66,000/=

iv. House allowance at Kshs. 59,400/=

v. Costs of the suit

45. It is so ordered.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 13TH DAY OF AUGUST, 2021.

CHRISTINE N. BAARI

JUDGE

ORDER

In view of restrictions in physical court operations occasioned by the COVID-19 Pandemic, this judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of court fees.

CHRISTINE N. BAARI

JUDGE

Appearance:

Mr. Swaka holding brief for Mr. Okenyo Omwanza for the Claimant

No Appearance for the Respondent