[2017] KEELRC 1541 (KLR)
The court found that the Claimant was an employee of the Respondent based on the NSSF membership card and unchallenged sworn testimony. The Respondent failed to attend the hearing or provide evidence to rebut the Claimant's case. The termination was unlawful for lack of notice, entitling the Claimant to one month's...
Source-derived case information.
- Citation
- [2017] KEELRC 1541 (KLR)
- Parties
- Claimant: Fredrick Otieno Ogutu; Respondent: Dayalal Bhanti & Sons Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 533 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; judgment for the Claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Employment Relationship, Notice Pay, Leave Entitlement, Severance Pay, Employee Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Otieno Ogutu
Claimant
Dayalal Bhanti & Sons Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Claimant was an employee of the Respondent.
- 2 Whether the termination of the Claimant's employment was unlawful for lack of notice.
- 3 Whether the Claimant is entitled to salary for January 2007, pay in lieu of notice, and leave pay.
Ratio Decidendi
The court found that the Claimant was an employee of the Respondent based on the NSSF membership card and unchallenged sworn testimony. The Respondent failed to attend the hearing or provide evidence to rebut the Claimant's case. The termination was unlawful for lack of notice, entitling the Claimant to one month's salary in lieu of notice. The Claimant was also entitled to salary for January 2007 and leave pay for six years, as these claims were not contested. Severance pay was denied as the Claimant was not declared redundant. The court awarded the Claimant a total of Kshs 61,600 plus costs.
Court Disposition
Claim allowed in part; judgment for the Claimant.
Orders
- Respondent to pay the Claimant Kshs 7,700 as salary for January 2007.
- Respondent to pay the Claimant Kshs 7,700 as one month pay in lieu of notice.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 533 OF 2012
(Originally Milimani CMCC No. 29 of 2008)
FREDRICK OTIENO OGUTU…………………….CLAIMANT
VERSUS
DAYALAL BHANTI & SONS LTD…………...RESPONDENT
JUDGMENT
1. The Claimant instituted legal proceedings against the Respondent on 9th January 2008 alleging unfair termination.
2. The Respondent filed a Response on 7th March 2008 but the hearing never took off.
3. On 8th March 2017, the Deputy Registrar issued a hearing notice with the hearing scheduled for 3rd April 2017.
4. The Claimant acknowledged service of the notice on 14th March 2017, while the Respondent was served on 13th March 2017.
5. When the Cause was called out for hearing, the Respondent was not present and was not represented. The Court allowed the hearing to proceed after satisfying itself that a hearing notice was served.
6. The Claimant gave sworn testimony and stated that he was dismissed in 2007 without notice being given. At the time of separation, he disclosed that he was a mechanic and the salary was Kshs 7,700/- per month.
7. To demonstrate that he was an employee of the Respondent, the Claimant produced a copy of his National Social Security Fund membership card (original was shown to Court).
8. Save for denying that the Claimant was in its employment, the Response consisted of no more than bare denials of the assertions by the Claimant.
9. The National Social Security Fund membership card show that the Respondent was the Claimants’ employer as at date of registration on 22nd March 2005.
10. The NSSF membership card can serve as secondary evidence of employment relationship and more so where there is no formal written contract.
11. The Court therefore finds that the Claimant was an employee of the Respondent.
12. At the time that the Claimant states he was dismissed, the law allowed an employer to dismiss without cause provided notice or pay in lieu of notice was given/paid.
13. Damages awardable where notice was not given was also generally measured in terms of the notice period.
14. As regards the heads of claim for salary for January 2007 and untaken leave, the Court has only the testimony under oath of the Claimant.
Remedies
Salary for January 2007
15. The Court, in the absence of evidence from the Respondent finds that the Claimant is entitled to earned wages for January 2007 in the sum of Kshs 7,700/-.
Severance pay
16. The Claimant was not declared redundant and therefore cannot be granted severance pay.
Pay in lieu of Notice
17. The Claimant was being paid by the month and therefore the equivalent of 1 month pay in lieu of notice would be appropriate.
Leave
18. The Claimant sought Kshs 46,200/- on account of leave not taken during the 6 years of service.
19. The head of claim not challenged or controverted, the Court finds for him.
Conclusion and Orders
20. The Court finds and holds that the termination of the Claimant’s employment without notice was unlawful and awards him and orders the Respondent to pay him
(a) Salary for January 2007 Kshs 7,700/-
(b) 1 month pay in lieu of notice Kshs 7,700/-
(c) Leave Kshs 46,200/-
TOTAL Kshs 61,600/-
21. Claimant to have costs.
Delivered, dated and signed in Nairobi on this 5th day of April 2017.
Radido Stephen
Judge
Representations
For Claimant Mr. Omondi instructed by Nzavi & Co. Advocates
For Respondents Munyalo Muli & Co. Advocates
Court Assistant Nixon