[2013] KEELRC 329 (KLR)

REPUBLIC OF KENYA

Industrial Court of Kenya

Cause 17 of 2012 [if gte mso 9]><xml>

Normal 0

false false false

EN-US X-NONE X-NONE

</xml><![endif]

FRANCIS KAINGU KADENGE ….............................................................CLAIMANT

VERSUS

LIGHT ACADEMY.....…........................................................................RESPONDENT

JUDGMENT

The Claimant has filed a Suit claiming terminal benefits for unlawful termination and refusal by his employer(Respondent) to pay terminal dues amounting to Kshs. 60,000/=. He also prays for damages for unlawful termination plus costs and interest.

The Respondent never filed any response to the Suit and never attended hearing despite being served with Hearing Notice.

The Suit was heard exparte on 24/4/2013 when the Claimant testified as CW1. He told the court that he was orally employed by the Respondent as a driver on 5. 1.2009 for a salary of Kshs. 15,000/= per month. He went for all his leave and also contributed to NSSF during his period of service.

That on 29/10/2010 the Respondent called him to a meeting and abruptly told him that his employment was terminated because the Respondent was going to sell all his buses. That he was told to come for his terminal dues in December 2010 which was later postponed to 30/1/2011. That as at the day of the hearing, the Respondent had not paid the Claimant's dues. He contented that the termination was unfair in the circumstances and prayed for compensation in addition to employment terminal benefits.

I have carefully perused the pleadings and considered the evidence by the claimant and I am satisfied that I have the jurisdiction to entertain the claim before me.

It is not denied that the parties in the suit were employee and employer for 2 years upto 25/10/2010 according to the Certificate of Service issued on 25/10/2010 by the Respondent produced as exhibit4.

The issues for determination are:-

a)Whether the employment was unlawfully and unfairly terminated by the Respondent?

b)Whether the relief sought ought to be granted?

Exhibit 1 produced by the claimant indicate that termination was

without any prior notice. The letter which is dated 23/7/2010 terminated the employment with effect from the same date.it is not clear whether the claimant who had no counsel may have made an error in saying the termination was on 29. 10. 2010. I will however consider the documentary evidence.

My interpretation of the termination letter is that the claimant's services were no longer required because the Respondent had decided to outsource transport from a contractor. This to me was terminated through redundancy.

The procedure for redundancy is provided for under section 40 of the Employment Act. It requires that one month written Notice be served upon the employee and the Labour Officer. The employer is then required to pay terminal dues among other considerations. That procedure was not followed in terminating the employment of the claimant. Consequently the termination was unlawful and unfair and it is so declared.

As regards the second issue, this court enters judgment for the Claimant as follows:-

(a)One month salary in lieu of Notice …........................................14000/=

(b)Leave not taken of 21 days …........................................................9800/=

(c)Leave travelling allowance.............................................................4000/=

(d)Twelve months salary for unfair termination...........................168000/=

195800/=

In calculating the above dues I have applied the salary of Kshs 14000/= which quoted in the letter of appointment. The Claimant will also have costs and interest.

Orders accordingly.

Signed, Dated and Delivered on the 10th May 2013.

ONESMUS N. MAKAU

JUDGE

[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif";} </style> <![endif]