[2017] KEELRC 1804 (KLR)
The court found that while the respondent notified the claimant of the intention to terminate her employment, the redundancy procedure under Section 40 of the Employment Act was not fully complied with, particularly regarding notification to the union and payment of all statutory dues. The respondent's failure to...
Source-derived case information.
- Citation
- [2017] KEELRC 1804 (KLR)
- Parties
- Claimant: Elizabeth Adhiambo Oduor; Respondent: Dr. Shalin Vora
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 945 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; claimant awarded terminal dues and costs.
- Judges
- NJ Abuodha
- Legal Topics
- Unlawful Termination, Redundancy Procedure, Terminal Dues, Severance Pay, Notice Period, Underpayment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Adhiambo Oduor
Claimant
Dr. Shalin Vora
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment was lawful and in compliance with statutory requirements.
- 2 Whether the claimant was entitled to terminal dues, including notice pay, severance pay, underpayment, and leave.
- 3 Whether the respondent complied with redundancy procedures under section 40 of the Employment Act.
Ratio Decidendi
The court found that while the respondent notified the claimant of the intention to terminate her employment, the redundancy procedure under Section 40 of the Employment Act was not fully complied with, particularly regarding notification to the union and payment of all statutory dues. The respondent's failure to address claims of underpayment, overtime, and annual leave rendered those claims uncontroverted. The court therefore awarded the claimant various terminal dues, including notice pay, leave pay, severance pay, underpayment, public holidays, and annual leave for four years, less the amount already paid by the respondent. The court also awarded costs to the claimant.
Court Disposition
Claim partly allowed; claimant awarded terminal dues and costs.
Orders
- The respondent shall pay the claimant Kshs 59,473 as terminal dues, being the balance after deducting Kshs 60,000 already paid.
- The respondent shall pay the costs of the suit to the claimant.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 945 OF 2012
ELIZABETH ADHIAMBO ODUOR………..……………..…CLAIMANT
VERSUS
DR. SHALIN VORA………….…………………….……..RESPONDENT
JUDGMENT
1. By memorandum of claim filed on 4th June 2012, the claimant averred that she was employed by the respondent as a house maid on 9th July, 2007 and worked as such until 24th April, 2012 when the respondent unlawfully terminated her services. Upon termination, the claimant referred the matter to her union who demanded that she be paid her terminal dues.
2. On 7th May, 2012 the claimant’s union official visited the respondent’s house to settle the matter but the respondent refused and only paid the claimant Kshs 60,000/= and told the union to go to court.
3. The respondent on its part averred that during her employment, the claimant was treated in a fair and respectable manner and was duly paid her monetary wages on time. According to the respondent, sometimes in the month of May 2012, the services that were being offered by the claimant became unnecessary and were no longer needed. The respondent wrote to the claimant and informed her of the same.
4. The claimant herein does not deny that she was notified of the intention to terminate her services. The letter attached to her bundle of documents as annexture I is the letter of intention to terminate her services with effect from 24th April, 2012, some twenty days to come. It is therefore not correct for the claimant to aver that her services were terminated without notice.
5. An employment relationship is terminable by either party provided the party initiating the termination conforms with law and procedure of termination of services. That is to say the party initiating the termination where it’s an employer ought to give reason and notice for the termination as per the contract of employment or as provided in the Employment Act.
6. The respondent in this case informed the claimant that her services would no longer be needed. She was not being terminated on account of any misconduct or dereliction of duty. A disciplinary hearing was therefore not necessary. The respondent needed only to comply with the provisions of section 40 of the Employment Act concerning redundancy. Section 40 requires (in paraphrase) that before termination on account of redundancy an employer should among others notify the employees union where such employee is unionsable or in other cases, the Labour Officer in charge of the area of the reasons and extent of the redundancy. The employee is further entitled to payment of leave due in cash and one month’s salary in lieu of notice. The employer shall further pay such employee severance pay at the rate of not less than fifteen days pay for each year of service.
7. The respondent claimed to have paid the claimant Kshs 60,000/= as terminal dues and that she executed a discharge voucher to that effect. Although the claimant does not deny receiving the payment, it was her contention that the payment was not enough. The discharge voucher was not exhibited in the pleadings to enable the court ascertain what the heads of compensation were.
There is also the claim by the claimant of underpayment, as overtime and annual leave. The respondent did not appear to have responded to these claims in its memorandum of response.
8. In view of the parties’ decision to rely on the documents as filed and dispense with oral evidence, the court will regard these claims as uncontroverted.
9. The court therefore awards the claimant as follows;
Kshs
(a) One months’ salary in lieu of notice 8,723
(b) One month’s salary in lieu of leave 8,723
(c) Severence pay at 15 days for each
completed year of service 17,400
(d) Salary underpayment 34,747
(e) Public Holidays 25,520
(f) Annual leave for 4 years 24,360
119,473
(g) Less Already paid 60,000
59,473
10. The claimant will further have costs of the suit.
It is so ordered.
Dated at Nairobi this 10th day of February 2017
ABUODHA JORUM NELSON
JUDGE
Delivered this 10th day of February 2017
ABUODHA JORUM NELSON
JUDGE