[2018] KEELRC 2257 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 765 OF 2012

EPHRAIM OWINO BUNYASI ..…….….………….……………CLAIMANT

VERSUS

SECUCENTRE LIMITED.……………….…..………………RESPONDENT

JUDGEMENT

1. By a memorandum of claim filed on 7th May, 2012 the claimant averred that he was employed by the respondent as a security guard in the month of April, 2005 at a monthly salary of Kshs 4,305/=. He averred that he discharged his duties continuously and diligently until 25th September, 2011 when his immediate supervisor asked him to immediately stop his duties and go home until such a time that he would be called back. He averred that he was never called back hence that amounted to constructive dismissal.

2. The respondent on its part denied that the claimant worked diligently continuously. According to the respondent, the claimant was uncooperative to both fellow workers and his seniors. The claimant always engaged in acts of insubordination to his supervisors who were obligated to redeploy any employee to any site. The respondent further averred that on 22nd September, 2011 at around 6:30 am the claimant was asked to be redeployed to another site PCEA Kangemi, to cover for one of his colleagues Mr Nicodemus Owanyi who was sick and could not report to work but the claimant refused to be redeployed and instead hurled insults at his supervisor and threatened to fight and left the site at his own volition

3. The respondent therefore stated that the claimant deserted his duties and chose to voluntarily abandon his employment hence the allegations that his services were terminated were untrue and malicious calculated to induce benefits for his own wrongs. The respondent further denied writing a recommendation letter for the claimant and further averred that the purported letter annexed to the claimant’s bundle of documents is a forgery and had been reported to the police for investigations.

4. In his oral testimony the claimant further stated that he used to be stationed at St Joseph Mountain View. His contract expired and the respondent started reducing the number of guards in accordance with length of service. He further stated that he was given a discharge letter to enable him find work elsewhere. He further stated that he had no disciplinary issues at his workplace. Upon termination he was not paid his terminal dues and salary for the month of September. He further stated that there were no deductions from his salary for NSSF.

5. In cross-examination, he stated that he was told by his supervisor that there was no more work and that he should report to the office. This was at night. He denied being asked to go and relieve a colleague at PCEA Centre.

6. The respondent’s witness Mr Geoffrey Owino Juma stated that he worked for the respondent as a driver and knew the claimant. They worked together for three years. It was his evidence that he used to transport guards and respond to alarms. According to him on the material date, he reported to work at 6. 00 p.m. and his supervisor Mr Ouwor told him that the guard at PCEA Centre was unwell so he should pick the claimant from St Joseph Kangemi and take him to PCEA Centre to relieve the sick guard which he did. When he arrived at PCEA Kangemi, he stopped the vehicle for the claimant and one Maurice to alight. He later saw the claimant leaving through PCEA gate. Maurice also came and told him the claimant had refused to work there.

7. In cross-examination he stated that he could not remember the name of the guard at PCEA Gardens and that he did not go inside PCEA compound. The respondent’s second witness Mr Owiri adopted his statement filed earlier in court and stated in cross-examination that he knew the claimant and that they had worked together for six years. According to him, he received a call that one of the guards was unwell. He sent the driver to get the claimant to cover for the sick guard. He however stated that he did not have the report over the claimant’s refusal to take the assignment in court. He further stated that no letter was written to the claimant to resume duties.

8. The burden of proof that wrong dismissal or unfair termination took place rests with the employee. The employer on the other hand has duty to prove or justify the reasons for dismissal or termination.

9. The claimant herein avers that he was called by his immediate supervisor to immediately stop his duties and go home until such a time that he would be called but was never called. He therefore assumed that he was dismissed from employment. He however did not aver or produce any evidence of any attempt to resume duties and what the respondent said about it. Curiously, a letter dated 11th October, 2011 attached to the claimant’s bundle of documents and purportedly written by the respondent to appear to give recommendation to the claimant’s prospective employer.

10. The letter states that the claimant worked for the respondent upto April, 2005 while in his memorandum of claim he averred that he was employed in the same April, 2005 and worked until 25th September, 2011 less than a month after his alleged termination and almost six years after he left employment if at all he worked upto 2005. These inconsistencies render plausible the averment by the respondent that the letter could be a forgery.

11. As observed earlier, the burden of proof that an unfair termination or wrongful dismissal has occurred lies on the employee and the fact that the burden of proof or justification for reasons for dismissal or termination of employment is on the employer does not lessen the employee’s burden.

12. The inconsistency in the claimants pleadings, his oral evidence and documents produced in support of his claim do not discharge the burden. The claim is therefore found without merit and is hereby dismissed with costs.

13. It is so ordered.

Dated at Nairobi on this 16th day of February 2018

Abuodha J. N.

Judge

Delivered on this 16th day of February 2018

Abuodha J. N.

Judge

In the presence of:-

…………………………………...…… for the Claimant

………………………………………. for the Respondent