[2013] KEELRC 425 (KLR)

REPUBLIC OF KENYA

Industrial Court of Kenya

Cause 223 of 2011 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]

EDWIN ODOUR CHACHA …………………………………………....………. CLAIMANTS

VERSUS

DR. PHILISTERS ONYANGO

THE CHAIRPERSON BOARD OF DIRECTORS

CHILDRENS LEGAL ACTION NETWORK………………………….....…….. RESPONDENT

JUDGEMENT

The Claimant Edwin Oduor Chacha filed this claim on 16th February 2011 against the Defendant claiming that he was unfairly terminated from employment. He seeks judgement against the Respondent for:-

a)Kshs.93,260. 00

b)Certificate of Service

c)Costs and interest

d)Any other relief the Court deems fit.

The Claimant filed and prosecuted his case in person.

The Respondent filed a reply to the Memorandum of Claim on 25th March 2011 through Waiganjo Wachira & Co. Advocates, in which it is admitted that the Claimant was in the employment of the Respondent on various contracts until 31st May, 2010 and thereafter on Probationary Contract until August 2010.

The Respondent avers that the Claimant’s contract was not renewed after May 2010 “due to several reasons, among them being that his services were no longer required, dishonesty and unsatisfactory performance.

The case was first fixed for hearing on 26th November 2012 but the Claimant did not serve a hearing notice upon the Respondent until 20th November 2012, less than one week before the hearing date.

The Respondent received the hearing notice under protest and did not attend Court. On the hearing date the Claimant was directed to take another date. He duely invited the Respondent for taking a hearing date at the Court Registry on 5th December 2012. The Respondent received the invitation letter on 28th November 2012 but did not attend at the Court registry to take a hearing date. The Claimant again took a date ex-parte and served a hearing notice upon the Respondent on 16th January 2013. A return of service and a copy of the hearing notice duly stamped by the Respondent’s advocates on record were filed in Court on 18th February 2013. The Respondents again failed to attend Court on 18th February 2013.

Having established that the Respondent was properly served the Court proceeded to hear the case ex-parte.

The Claimant testified that he was employed by the Respondent in 2001 as ‘Askari’ and Shamba Boy and worked until 2003. In 2004 the Respondent started giving him fixed term contracts of 1 or 2 years which were renewed until 2010. In July 2010 he was suspended from duty for 1 month on half pay and thereafter resumed duty. On 1st October 2010 he was given a termination letter. He wrote a letter asking for terminal dues and was paid Shs.24. 000. 00/= which was arrears of his salary for February, August, September and October 2010. He testified that his salary was Kshs.10,000. 00 per month and he was a member of NSSF.

He seeks payment for annual leave for all years worked, service pay for 10 years worked, notice and certificate of service, and compensation for unfair termination.

I have considered the pleadings and the evidence of the Claimant. The issues for determination are the following:-

1)the length and nature of the Claimants contract of employment.

2)whether the Claimant was unfairly terminated.

)whether the Claimant is entitled to the reliefs sought.

Length and Nature of the Claimants contract of employment

Claimant has annexed his original letter of appointment as Exhibit 1 which confirms his permanent appointment with effect from 1st April 2001. The Respondent has not commented about this and I therefore find that the Claimant was appointed by the Respondent on Permanent terms from 1st April 2001. He was in continuous employment until he received the letter of termination dated 1st October 2012. This fact is not contested by the Respondent. Although he was later issued with fixed term contracts which were renewed severally with the last one expiring on 31st May 2010 as confirmed by the contract signed on 30th September 2008, he remained in employment on similar terms until he was terminated on 1st October 2010.

The second issue for determination is if the Claimant’s employment was terminated fairly

The Employment Act provides for the procedure for termination of employment in Section 41. An employer must inform the employee of the reasons for termination and give the employee an opportunity to state his case.

Section 45 of the Employment Act further provides that for termination of employment to be fair, the employer must prove both fair procedure and valid reason for the termination.

In the present case, the reason for termination in the letter of termination is that the organization was moving to new premises and the Claimant’s services were no longer required. The letter also gives a second reason as the Claimants suspension two months earlier based on missing items.

If the ground of termination is because the Respondent was moving to new premises where the Claimant’s services are no longer required, the termination would be a redundancy. If for the second reason, it would be based on discipline. In both instances the procedure provided for in the Employment Act which is Section 40 for redundancy and Section 41 for discipline were both not complied with by the Claimant. In either case therefore the termination was unfair.

For purposes of this case I hold that the Claimant was declared redundant because the issue of discipline had been dealt with and concluded two months earlier when the Claimant was allowed to resume duty after the suspension. It can therefore not form a basis for the termination of his services.

The next issue for determination is whether the Claimant is entitled to his prayers.

The Claimant prayed for the following reliefs:-

1. Shs.93,260. 00 on account of pay in lieu of notice of Kshs.10,000. 00, pay in lieu of annual leave not taken of Shs.73,260 and service pay for 10 years being Shs.10,000. 00.

2. Certificate of Service.

Pay in lieu of notice

The Claimant is entitled to 1 months’ salary in lieu of notice. The Respondent’s letter dated 1st October 2010 titled ‘RE: TERMINAL DUES” has lumped up and paid as 1 item the September 2010 salary and payment in lieu of notice. The Claimant is entitled to the salary for September 2012 in addition to one months’ salary in lieu of notice. I therefore assume the payment was salary for September and award the Claimant Kshs.10,000/= being 1 months’ salary in lieu of notice.

Pay in lieu of Annual leave

The Claimant pleaded in his claim and also testified that he never went on annual leave for the whole period that he was in employment. The Respondent has attached several applications and approvals for off-duty and sick off in respect of the Claimant in Exhibit “CLAN 5 a-M11. None of the exhibits is in respect of annual leave, except Exhibit “CLAN 5H” which was for 4 days leave. The Respondent merely made a general denial without indicating how many leave days the Claimant was entitled to, how many days leave were taken and what the balance is, if any. In the absence of such clarity the Court is left with the task of interpreting the documents submitted in Respondents Exhibit “CLAN 5” plainly as expressed on the face of the document. For the foregoing reasons I find that the Claimant is entitled to annual leave for the period 1st April 2001 to 1st October 2010 being 199. 5 days for the 9 years and 6 months stated above leaving a balance of 195. 5 days. His daily rate of pay based on a monthly salary of Kshs.10,000/= as specified in his last contract is Shs.333. 33 and for 195. 5 days is Kshs.65,166. 70. I award him the said amount as pay in lieu of annual leave.

The Claimant has also prayed for service pay. However as I have already found herein above, he was declared redundant and is therefore not entitled to service pay but to severance pay. I make this correction with the understanding that the Claimant acted in person and may not understand the difference between ‘service’ and ‘severance’ pay. The Employment Act provides for severance pay at the rate of not less than 15 days salary for each year worked. For this reason I award the Claimant the sum of Shs.45,000/= being 15 days salary for 9 completed years of service.

Certificate of Service

The Claimant is entitled to a Certificate of Service as provided for under Section 51 of the Employment Act.

In the final analysis I give judgement for the Claimant against the Respondent as follows:-

1)Kshs.120,166. 70

2)Certificate of Service.

There shall be no orders for costs.

Orders accordingly.

Read in open Court and signed on this 27th day of March, 2013.

HON. LADY JUSTICE MAUREEN ONYANGO

JUDGE.

Edwin Oduor Chacha

In the presence of:- _____________________________________ Claimant

No appearance for the

_____________________________________ Respondent

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