[2019] KEELRC 817 (KLR)
The court found that the claimant was dismissed without a valid reason and that the respondent failed to follow fair procedure as required by the Employment Act. The evidence of the claimant was uncontroverted, and the respondent's actions were found to be malicious and wrongful, particularly as the claimant had...
Source-derived case information.
- Citation
- [2019] KEELRC 817 (KLR)
- Parties
- Claimant: Dennish Owino Omega; Respondent: Mumias Sugar Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 25 of 2017
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- judgment for the claimant
- Judges
- MN Nduma
- Legal Topics
- Unfair Termination, Summary Dismissal, Disciplinary Procedure, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennish Owino Omega
Claimant
Mumias Sugar Company Limited
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the claimant's termination was unlawful and unfair under the Employment Act.
- 2 Whether the respondent had a valid reason and followed fair procedure in terminating the claimant.
- 3 Whether the claimant is entitled to compensation for unfair dismissal.
Ratio Decidendi
The court found that the claimant was dismissed without a valid reason and that the respondent failed to follow fair procedure as required by the Employment Act. The evidence of the claimant was uncontroverted, and the respondent's actions were found to be malicious and wrongful, particularly as the claimant had already been warned for the alleged absenteeism. The court held that the termination was both substantively and procedurally unfair, entitling the claimant to compensation. Considering the claimant's length of service, good record, and aggravating circumstances, the court awarded compensation equivalent to five months' salary.
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant the equivalent of five months' salary in compensation for unlawful and unfair termination, amounting to Kshs. 778,665.
- Interest at court rates from date of judgment until payment in full.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CASE NO. 25 OF 2017
(Before Hon. Justice Mathews N. Nduma)
DENNISH OWINO OMEGA...................................................CLAIMANT
VERSUS
MUMIAS SUGAR COMPANY LIMITED.........................RESPONDENT
JUDGMENT
1. The claimant worked for the respondent as a Technician in the packaging plant from the year 2012.
2. On 25th October 2016, the claimant was served with a show cause letter to explain his absence from work between 15th and 19th September 2016.
3. The claimant explained in a letter dated 26th January 2016 that he was at work on the stated days. The claimant was given a 1st and final warning letter dated 3rd March 2016.
4. The claimant testified that this was a witch-hunt as the 17th, 18th and 19th fell on a weekend and the claimant’s supervisor was away on leave.
5. On 7th November 2016, the claimant got a 2nd notice to sow cause in which same issues were raised. The claimant responded by a letter dated 8th November 2016. The claimant was accused of insubordination in that he had refused to apply for leave for the 3 days he was said to have been absent earlier. The claimant explained that he had worked on those days and therefore he saw no need to apply for leave in respect of the said days.
6. Claimant further testified that his colleagues confirmed that he was at work. These colleagues were Mr. Bultan, M/S Lois, Mr. Mechack and Mr. Koome. On 10th November 2016 the claimant was issued a letter of suspension up to 14th December 2016. The claimant was called to a disciplinary hearing on 13th December 2016. At the meeting the claimant was not given a chance to speak. The notice did not explain what the meeting was for. The claimant was dismissed on 15th December 2016.
7. At the time, the claimant earned Kshs. 155,733 per month as per the pay slips before court.
8. The claimant was paid two months salary in lieu of notice.
9. The claimant testified that there was no valid reason to terminate his employment and that the dismissal was unlawful and unfair.
10. The claimant said that he had a good record at work and had never absented himself at work. The claimant seeks compensation for the unlawful and unfair dismissal.
11. The respondent did not call any witness to refute the testimony by the claimant. The evidence by the claimant that he was dismissed for no valid reason remains uncontroverted. The court is satisfied that the claimant was at work on the days he was wrongly accused of being absent. The claimant rightly refused to apply for leave in respect of the said three days because he had worked during the said three days.
12. The court is also satisfied that the claimant had already received warning in respect of the alleged absenteeism despite protestation that he was in.
13. It was malicious and wrongful for the respondent to terminate his employment in respect of the same matter he had been previously warned over.
14. The respondent violated Sections 41, 43, 44, 45 and 46 of the Employment Act in that the termination was not for a valid reason and a fair procedure was not followed in effecting the termination.
15. The claimant is entitled to compensation in terms of Section 49(1) (c) and (4) of the Employment Act, 2007. The claimant had served the respondent diligently for a period of about six (6) years. The claimant had rose through the ranks and had his salary increased. The claimant had good career prospects at the respondent’s company. The claimant was wrongfully victimized for an offence of absenteeism which he had not committed. The supervisor exhibited malice in this matter and this is an aggravating circumstance. The claimant received notice pay upon termination. The clamant only seeks compensation having testified that he was paid in lieu of two months notice.
16. The claimant suffered loss and damage due to something he had not done at all.
17. The claimant had not gotten alternative employment but was doing some business.
18. The claimant relies on the case of Alphonce Maghanga Mwachanya vs Operation 680 Limited (2013) eKLR in which Rika J. awarded 12 months salary in compensation for the unlawful and unfair termination of employment.
19. The court has considered the case of Mary Chemweno Kiptui vs Kenya Pipeline (2014) eKLRand all the factors above in awarding the claimant the equivalent of five (5) months salary in compensation for the unlawful and unfair termination of employment in the sum of Kshs. 778,665.
20. In the final analysis judgment is entered in favour of the claimant as against the respondent as follows:
(a) The equivalent of five (5) months salary in compensation for unlawful and unfair termination in the sum of Kshs. 778,665.
(b) Interest at court rates from date of judgment till payment in full.
(c) Costs of the suit.
Judgment Dated, Signed and delivered this 16th day of September, 2019.
Mathews N. Nduma
Judge
Appearances
M/S Otieno for claimant.
Mr. Osodo for Respondent
Chrispo – Court Clerk