[2019] KEELRC 1167 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1504 OF 2014

DAVID OGUTU ANASI..........................................CLAIMANT

VERSUS

INDERPAL SINGH............................................RESPONDENT

JUDGMENT

1. The Claimant brought this suit on 29. 8.2014 seeking the following reliefs:-

(a) A declaration that the Claimant dismissal was wrongful and unfair.

(b) The Claimant be and is hereby paid terminal benefits amounting to Kshs.285,588/=.

(c) The Respondent be and is hereby ordered to pay compensation to the Claimant equivalent to 12 months’ salary.

(d) The Respondent to pay costs.

2. The facts of the Claimant’s case is that he was employed by the Respondent as a Gardener and Gateman earning Kshs.9,800 per month. He used to work from 6 a.m. to 6. 30 p.m from Monday toSaturday but he was not paid overtime. He was not housed by the Respondent and he was not paid any House Allowance. On 2. 5.2014 he reported at work as usual and at the close of business he was paid salary for April 2014 and his employment terminated without any prior notice and without any reason. He therefore brought this suit contending that his dismissal was unfair and contrary to the principles of natural justice and section 41 of the Employment Act.

3. The respondent admitted the employment relationship contended that it started on 1. 2.2013. He denied the allegation that he dismissed the claimant and averred that it is the Claimant who deserted work from 2. 5.2014 without any prior notice or reason. He further averred that despite the said breach, he paid the Claimant severance pay plus all outstanding leave days. He denied the claim for overtime and averred that the claimant never worked during the alleged hours.

4. The suit was heard on 2. 4.2019 when the Claimant testified as Cw1 but the Respondent never attended the hearing to prosecute his defence. After the hearing, the Claimant filed written submissions.

Claimant’s Evidence

5. Cw1 testified that he was employed by the Respondent on 1. 1.2012 as a Gardener and a Gatekeeper. His salary was Kshs.9,800 but he was not housed or paid house Allowance. That on 2. 5.2014 he reported to work as usual and at the end of the day’s work, he was paid his salary that April 2014 before being summarily dismissed unceremoniously. That the reason was given for the termination was that he was headstrong and rude because he was slow in opening the gate until the Respondent had to hoot. That he was not served with any prior notice. That in total he worked for 30 months without any warning and he never went for his annual leave. That NSSF contributions were not remitted by the employer and no Certificate of Service was given to him after the termination. He prayed for terminal dues plus compensation for unfair termination.

Analysis and determination

6. After careful consideration of pleadings evidence and submissions presented to the Court, there is no dispute that the claimant was employed by the respondent as a Gardener. The issues for determination are:-

(a) Whether the Claimant deserted employment or he was unfairly terminated.

(b) Whether the Claimant is entitled to the reliefs sought.

Desertion or unfair termination

7. The respondent did not prosecute his defence that the Claimant deserted employment on 2. 5.2014 without prior notice. Consequently, I dismiss the said defence for lack of evidence.

8. On the other hand, the Claimant gave conflicting testimony on his alleged dismissal. In his written testimony, which he adopted as part of his evidence in chief, he stated that he was dismissed for no reason on 2. 5.2014. The said statement was in consonance with his pleading at paragraph 12 of the statement of claim. However, during his oral testimony in Court, he stated that he was dismissed for the reason that he was head strong and rude because he was taking time to open the date until the respondent hoots several times.

9. The foregoing sharp contradiction in the evidence tendered, in my view, should not be believed. If the reason stated in Court after 5 years had been cited by the employer, the claimant would have mentioned the same in his pleadings and the written statement, which were done 3 months after the termination. Consequently, I return that the claimant has not proved that he was unfairly terminated as required by section 47(5) of the Employment Act. The said section provides that in any claim for unfair termination ofemployment, the burden of proof is upon the employee who allegesthat he was unfairly terminated while the employer has the burden of justifying the reason for the termination or dismissal.

Reliefs

10. In view of the foregoing finding that the Claimant has not proved that he was unfairly terminated or dismissed by the respondent I dismiss the claim for one month salary in lieu of notice and compensation for unfair termination under section 49 of the Employment Act.

11. I however award him salary for the 2 days worked in May 2014 being Kshs.754 since it was admitted by the Respondent through his Advocates letter dated 15. 8.2014.

12. I further award him leave earned during his 30 months of service being 52. 5 days computed using the rate of 21 leave days per year. Hence Kshs.9,800 x 52. 5/26 = Kshs.19,788. 46. However because the Claimant pleaded Kshs.19,600, that is what I award him because a party is bond by his pleadings.

13. The claim for house allowance is dismissed because the Claimant has produced as evidence, the letter dated 15. 8.2014 whereby the respondent responded to the Claimant’s demand letter stating thathe had provided housing to him at his servant quarter but the Claimant left it in November 2013.

14. The claim for severance pay is also dismissed because the separation was not through redundancy under section 40 of the Employment Act.

15. The claim for overtime is allowed at the rate of 2 hours per day, 6 days a week for 30 months equalling to 1440 hours. The normal hourly rate was Kshs.9. 800 ÷ 26 days per month ÷ 8 hours per day equalling to Kshs.47. 10. Normal overtime pay is 1 ½ times normal hourly rate. Hence, Kshs.47. 10 x 1. 5 x 1440 hours equals toKshs.101,769. 25. However, the claimant prayed forKshs.83,934and that is what he is awarded.

Conclusion and disposition

16. I have found that the Claimant has not proved that he was unfairly terminated by the Respondent. I have further found that in view of the said default, he is not entitled to salary in lieu of notice plus compensation for unfair termination. I have however also found that the Claimant is entitled to some accrued terminal dues. Consequently, I enter judgement for the Claimant as follows:-

(a) Salary 2 days...................................Kshs. 754

(b) Leave 52. 5 days.....................................19,600

(c) Overtime 1440 hours..............................83,934

104,288

The said award is subject to statutory deductions. The Claimant will however get half costs because the suit was partially successful.

Dated, Signed and Delivered in Open Court at Nairobi this 12thday of July, 2019.

ONESMUS N. MAKAU

JUDGE