[2019] KEELRC 1173 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CASE NO. 224 OF 2016

(Before Hon. Justice Mathews N. Nduma)

EDWARD APIYO NDANYI.................................CLAIMANT

VERSUS

THE SECRETARY B.O.G.

EKWANDA SECONDARY SCHOOL........RESPONDENT

JUDGMENT

1. The claimant testified as CW1 and told the court that he worked for the respondent as a watchman from 29th July 2011. The claimant worked daily from 6. 00 am up to 6. 00 pm in the evening and 6 pm to 6 am in the morning. They did day and night shifts. The claimant worked until 27th July 2014 when he was simply told to go home verbally. The claimant was paid Kshs. 4,000 per month.

2. The claimant received a letter of termination dated 25th July 2014. The claimant reported to KUDHEIHA union. The claimant was dismissed for joining the union. He got no notice of termination, no notice to show cause and no reasons for the termination. No disciplinary hearing was held. The claimant was not paid in lieu of notice. CW1 was underpaid in terms of the security wage order and was not paid in lieu of leave days not taken.

3. Under cross examination, the claimant testified that he guarded the school gate. He admitted that he was called by the board and was asked to defend himself. The claimant denied any wrong doing. He said that the principal saw a paper bag he was carrying which contained Sukuma wiki remains from the school rabbits. That he was taking the same to the rubbish pit. CW1 explained to the Board what he was carrying. He denied having gone through an unauthorized route out of the school and denied that he used to sleep at work. CW1 however admitted that he was found one day asleep because he was sick from malaria. CW1 got a warning letter for that day. CW1 said that he was dismissed for sleeping at work and for stealing Sukuma wiki. He admitted that he was given notice to show cause and opportunity to explain himself contrary to earlier testimony during his testimony in chief.

4. RW1 called Julius Kibisu, the principal of the school from the year 2010. RW1 testified that the claimant was employed as a casual for a long time form 1st August 2000. That RW1 employed him on permanent terms. That claimant earned Kshs. 2,000 per month then. The salary was raised to Kshs 4,000 per month by a letter dated 29th July 2011. That the claimant did not raise any objection to the salary he received until after termination. RW1 denied having refused the claimant to register with the union. RW1 said he found the claimant sleeping twice at the gate. RW1 took items from the claimant whilst he was asleep. RW1 gave the claimant warning letters. The claimant responded to the letters in a Board Meeting. He claimed to be on medication. That he did not produce any medical report.

5. The second offence was that of sneaking out of the school carrying two (2) bags. RW1 said that CW1 claimed it was waste Sukuma wiki from the kitchen. RW1 was given opportunity to attend three (3) board meetings to explain himself and to respond to the letters by RW1. That CW1 was given a fair hearing. That he was accompanied by a Union Official at the Board Meetings. That Mr. Kombo accompanied CW1 twice in July and October 2014. That CW1 admitted the offences at the meetings and pleaded for leniency. The claimant was to be paid three (3) months salary as terminal benefits. RW1 prayed the suit be dismissed. Under cross examination RW1 insisted that the claimant received warning letters, notices to show cause and attended disciplinary hearings before the Board. That claimant had been warned about sleeping in the presence of the bursar and other support staff. That the claimant was dismissed for sleeping at work and for theft. The matter was not reported to the police. RW1 admitted that claimant was paid Kshs. 4,000 salary incisive of house allowance and other allowances including leave travelling allowance and subsistence allowance were included in that pay.

Determination

6. The issues for determination are:

(a) Whether the dismissal of the claimant was for a valid reason and done following a fair procedure.

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

Issue (a)

7. The totality of the evidence before court has shown that the claimant was guilty of sleeping whilst at work and had been caught red-handed with stolen vegetables by RW1. The claimant was given opportunity to show cause and to appear at a disciplinary hearing accompanied by a union official. The explanation given to the Board was deemed unsatisfactory and the claimant in the court’s considered view was dismissed from work for a valid reason and a fair procedure was followed in arriving at the decision to dismiss the claimant from work.

Reliefs

Notice Pay

8. The claimant was paid three months salary upon termination. It was not explained what the three months salary represented. The court finds that the claimant was a union member and his terms of service were governed by the security services wages order.

9. The claimant ought to have been paid a minimum wage of Kshs. 10,116. 15 at the time of dismissal. The claimant was underpaid throughout the period he served the respondent. The court finds that the claimant is entitled to one month’s pay in lieu of notice in the sum of Khs. 10,116. 15.

Leave days.

10. The claimant had not taken leave for the year 2014. He is entitled to one month salary in lieu of leave not taken in the sum of Kshs. 10,116. 15.

Service pay.

11. In terms of the security services wages order, the claimant is entitled to 18 days salary in respect of every concluded year of service. The claimant had served the respondent from 1st August 2000 to 25th July 2014 a period of 13 completed years. The claimant is therefore entitled gratuity calculated at 18 days salary of the last salary he earned. The court awards him Kshs. 78,905. 97 being gratuity in respect of 13 years served.

Overtime

12. The claimant worked twelve hours every day and did not get off days in a week. The claimant however did not claim overtime for the thirteen years served. The only valid claim for payment of overtime is with respect to the last three years of service. The rest of the claim is statute bared. The claimant is therefore to compute overtime in respect of four extra hours worked for the last there years served and file with the court within 30 days. The respondent is to file a counter computation within 14 days of service.

13. In the final analysis judgment is entered in favour of the clamant as against the respondent as follows:

(a) Kshs. 10,116. 15 in lieu of one month notice.

(b) Kshs. 10,116. 15 in lieu of leave days not taken.

(c) Kshs. 78,905. 97 service pay for 13 years.

(d) Overtime calculated at four (4) extra hours for the last three years of service to be computed and filed as directed in this judgment within 45 days.

(e) Interest at court rates from date of filing suit till payment in full.

(f) Costs of the suit.

14. For the avoidance of doubt, the claim for compensation was dismissed.

Judgment Dated, Signed and delivered this 9th day of July, 2019

Mathews N. Nduma

Judge

Appearances

M/S Oketch for claimant.

M/S Odhong for Respondent

Chrispo – Court Clerk