[2014] KEELRC 404 (KLR)
The court found that the claimant was employed by the respondent from 1997 to 2012 and retired voluntarily after 15 years of service. There was no evidence of unfair or unlawful termination by the respondent. The claimant was not entitled to compensation for unfair termination as he left employment voluntarily....
Source-derived case information.
- Citation
- [2014] KEELRC 404 (KLR)
- Parties
- Claimant: Francis Malai Kinyili; Respondent: Inter Security Services
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 660 of 2013
- Procedural Posture
- Employment Cause / Ex Parte Hearing and Final Award
- Outcome
- Claim partly allowed; service pay awarded; no compensation for unfair termination.
- Legal Topics
- Service Pay, Terminal Benefits, Voluntary Retirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Malai Kinyili
Claimant
Inter Security Services
Respondent
Procedural Posture
Employment Cause / Ex Parte Hearing and Final Award
Legal Issues
- 1 Whether the claimant was unfairly or unlawfully terminated from employment.
- 2 Whether the claimant is entitled to service pay and terminal benefits upon retirement.
Ratio Decidendi
The court found that the claimant was employed by the respondent from 1997 to 2012 and retired voluntarily after 15 years of service. There was no evidence of unfair or unlawful termination by the respondent. The claimant was not entitled to compensation for unfair termination as he left employment voluntarily. However, since the respondent did not show that the claimant was a beneficiary of any social security plan, the claimant was entitled to service pay for the 15 years worked, calculated at 18 days' salary for each completed year of service, as provided by the Regulation of Wages (Protective Security Services) Order. The court awarded the claimant Kshs. 85,943 as service pay in full...
Court Disposition
Claim partly allowed; service pay awarded; no compensation for unfair termination.
Orders
- The respondent shall pay to the claimant service pay in the sum of Kshs. 85,943 in full and final settlement of the claim.
- No order on costs and interest.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 660 OF 2013
BETWEEN
FRANCIS MALAI KINYILI………………………………………………………………. CLAIMANT
VERSUS
INTER SECURITY SERVICES ……………….....…………………………...…….. RESPONDENT
Rika J
CC. Mr. Edward Kidemi
Claimant Francis Malai Kinyili appearing in Person
No appearance for the Respondent
_________________________________________
ISSUE IN DISPUTE: UNFAIR AND ULAWFUL TERMINATION
AWARD
1. The Claimant filed his Statement of Claim on 8th May 2013. The Respondent did not file any papers. The record indicates the Respondent was invited by the Claimant to schedule the dispute for the hearing. The invitation was date stamped and signed on 19th December 2013 by the Respondent, in acknowledgement of receipt. The Respondent did not turn up at the Court Registry to fix the hearing date. The Claimant fixed the date and served the Respondent with the Hearing Notice through a Process-Server. The copy of the Hearing Notice filed with the Affidavit of Service has the signature and stamp of the Respondent. The Hearing Notice was received on 14th February 2014 by Esther Wanja, described in the Affidavit of Service as the Company Secretary. The hearing was scheduled for 8th April 2014. The Respondent did not attend Court, and the Claimant gave evidence ex parte.
2. He testified he was employed by the Respondent in March 1997, as a Night Guard cum Loader. He was paid Kshs. 8, 276 per month. He was not issued a letter of employment. He retired in 2012. He claims he was not paid terminal benefits. He claims service pay at the rate of 15 days’ salary for every year completed in service, amounting to Kshs. 72,000. He also seeks compensation at 12 months’ salary for what he terms as the refusal by the Respondent to pay him terminal dues.
The Court Finds and Awards-:
3. There is nothing to contradict the Claimant that he was employed by the Respondent as a Night Guard cum Loader in 1997, at a monthly salary of Kshs. 8,276. There is also no evidence to contradict the claim that the Claimant retired from employment in 2012, after 15 years of service.
4. He appears to have left employment voluntarily. There is no good reason shown by him why he should be paid compensation by the Respondent, having left work voluntarily. His contract was not terminated by the Respondent. He left voluntarily, and does not merit compensation under Section 49 of the Employment Act 2007.
5. The Claimant is entitled to service pay for the 15 years worked. There was no evidence given by the Respondent to show the Claimant was a beneficiary under any Social Security Plan. The Court grants him service pay at the rate of 18 days’ salary for every year completed in service, as provided for under the Regulation of Wages [Protective Security Services] Order. This is computed as follows: Kshs. 8,276 divided by 26 working days = Kshs. 318 x 18 days = Kshs. 5,729 x 15 years= Kshs. 85,943. In sum:-
The Respondent shall pay to the Claimant service pay in the sum of Kshs. 85,943 in full and final settlement of the Claim.
No order on the costs and interest.
Dated and delivered at Nairobi this 25th day of June 2014
James Rika
Judge