[2018] KEELRC 2423 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT MOMBASA

CAUSE NUMBER 844 OF 2015

BETWEEN

ELIUD KIPNG’ETICH KALUM LAGAT ……………………………………………………CLAIMANT

VERSUS

T.S.S.GRAIN MILLERS LIMITED …………………………………………………RESPONDENT

Rika J

Court Assistant: Benjamin Kombe

__________________________

Jacquiline Kariuki & Company Advocates for the Claimant

No appearance for the Respondent

__________________________

JUDGMENT

1. The Claimant filed his Statement of Claim on 27th November 2017. He states he was employed by the Respondent Company as an Assistant Machine Operator, on 16th November 2009. His contract was terminated summarily by the Respondent on 29th May 2015. He earned a monthly salary of Kshs. 17,683, as of the date of termination. He avers termination was without notice and just cause. He prays for Judgment against the Respondent for:-

a. 3 months’ salary in lieu of notice at Kshs. 53,049.

b. Service pay over a period of 5 years at Kshs. 88,415.

c. Pro-rata leave of 5, years at Kshs. 88,415.

d. 12 months’ salary in compensation for unfair termination at Kshs. 212,196.

Total…Kshs. 442,975

e. Costs, interest and any other suitable relief.

2. There are Affidavits of Service on record indicating the Respondent was served with Notice of Summons, Copy of the Statement of Claim and Mention Notice. The Respondent did not file any Response, or attend Court when required to do so. The Claimant was granted his application by the Court on 9th February 2017, to have the Claim considered and determined on the strength of the record, under Rule 21 of the Employment and Labour Relations Court [Procedure] Rules 2016.

3. He states he was not given the contractual 2-month notice of termination. Elsewhere, he refers to 3-month notice. He was not heard. During employment, he was mistreated and abused by Respondent’s Officers. They alleged the Claimant was a terrorist. In support of his Claim, he exhibits his national identity card, his employment card designating him as Machine Attendant, employment letter, pay slips, and termination letter.

The Court Finds:-

4. The Pleadings, Witness Statement, Verifying Affidavit and above-listed Documents are sufficient to show that the Claimant was employed by the Respondent, on the terms and conditions of service stated in the Claim. His contract was terminated by the Respondent in a letter dated 28th May 2015. His letter of employment establishes the date of employment as 16th November 2009. The pay slips show his monthly salary. These documents are not disputed.

5. The Respondent did not participate in the proceedings. It did not therefore prove the reason for termination, and show validity of that reason, as required under Section 43 and 45 of the Employment Act 2007.

6. The termination letter suggests the Claimant was found chewing miraa [Khat], [a mild stimulant which is not a prohibited substance in Kenya], inside the factory, by Respondent’s Security Guard. The Respondent alleged it has a zero-tolerance policy on use of illegal substances at the workplace.

7. The Respondent cannot be faulted for implementing its policy on chewing of miraa at the workplace, although the substance is not illegal. However, the Respondent should have taken the Claimant through a disciplinary process, and established that the Claimant acted contrary to Respondent’s policy onmiraa chewing. The Claimant was not presented with any charges. He was not heard. He was not found culpable of any offence at the workplace before termination. He states he was mistreated and insulted by his Employer, who alleged the Claimant was a terrorist. It is not clear if these insults were in any way related, to the allegation that the Claimant was found chewing miraa. Nevertheless it was for the Respondent to show valid reason, justifying termination decision. The Claimant was dismissed summarily on the date the letter of termination issued. Termination was unfair.

8. He is granted 8 ½ months’ salary in compensation for unfair termination at Kshs. 150,305.

9. He prays for 3 months’ salary in lieu of notice. He also mentions a 2-month notice in his pleadings. The letter of employment exhibited before the Court does not have a clause availing the Claimant 3 months’ salary in lieu of notice. The Court has not seen any clause, setting the notice period at 2 months either. He is granted 1 month salary in lieu of notice at Kshs. 17,683, under Sections 35 and 36 of the Employment Act 2007.

10. He prays for service pay. His pay slip shows he was subscribed to the National Social Security Fund [N.S.S.F]. He is not eligible for payment of service pay, under Section 35 [6] of the Employment. The prayer is declined.

11. He asks for pro-rata annual leave over the entire period worked. The Court understands this to be a prayer for plain annual leave over a period of 5 years worked, and pro-rata leave of the months worked in excess of the complete 5 years. Annual leave is pro-rata, if the Employee’s service is interrupted by a non-leave earning period. The Claimant worked from November 2009 to May 2015. There was nothing which interrupted this leave earning period. He is entitled to annual leave of 5 years between 2009 and 2014, at a minimum of 21 days annually. The Respondent offered nothing to show the Claimant utilized his annual leave, or was paid in lieu of leave. He is allowed 105 days of annual leave pay, at Kshs. 74,412.

12. The period between November 2014 and May 2015 would qualify the Claimant for pro-rata annual leave. The Claimant’s contract was terminated while he was 6 months’ into his last 12 months’ leave earning period. What would have been another year allowing the Claimant to have full annual leave, was interrupted by premature termination. His pro-rata annual leave is therefore to be granted in proportion to the 6 months served. This translates to pro-rata annual leave of 10. 5 days at Kshs. 7,141. He is allowed pro-rata leave pay of Kshs. 7,141.

13. The Claimant might as well have pleaded the combined figure of annual leave pay and pro-rata leave under the generic head of annual leave pay. It is however not correct to characterize the entire annual leave entitlement, over a period of 5 ½ years as pro-rata.

14. Costs to the Claimant.

15. Interest allowed at 14% per annum from the date of Judgment till payment is made in full.

16. Lastly, the Court has observed reference is made in Submissions filed by the Claimant, to the presence of more than one Claimant in the proceedings herein. At the paragraph subtitled ‘Synopsis’ it is submitted ‘’ The Claimants are entitled…’’ It is submitted also, under the paragraph subtitled ‘Fit and Just Reliefs,’ that ‘’ the Claimants issued demand…’’ Although the Claimant has a fairly long name, capable of causing confusion, as to the number of Claimants involved in the Claim, it is noted there is one Claimant on record, and reference to Claimants by the Claimant’s Advocate, is erroneous.

IN SUM, IT IS ORDERED:-

Termination was unfair.

The Respondent shall pay to the Claimant, equivalent of 8 ½ months’ salary in compensation for unfair termination at Kshs. 150,305; 1 month salary in lieu of notice at Kshs. 17,683; annual leave pay at Kshs. 74,412; and pro-rata leave at Kshs. 7,141- total Kshs. 249,541.

Costs to the Claimant.

Interest allowed at 14% per annum from the date of Judgment till payment is made in full.

Dated and delivered at Mombasa this 23rd day of February 2018.

James Rika

Judge