[2015] KEELRC 335 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS

COURT AT NAIROBI

CAUSE NUMBER 143 OF 2013

GEOFFREY MUEMA …………..……….……………….................….………. CLAIMANT

VERSUS

MULTIPLE HAULIERS E.A. LTD ……….………..……....................…… RESPONDENT

JUDGMENT

In his Memorandum of Claim dated 28th January, 2013 and filed on 1st February, 2013, the Claimant states that he was employed by the Respondent in October, 2007 and was wrongfully and unlawfully dismissed by the Respondent on 3rd March, 2012. He seeks the following remedies:-

a) One Month salary in lieu of termination notice Kshs. 9,373. 00

b) Unpaid salary for the month of February 2012 Kshs. 9,373. 00

c) Unpaid leave for the year 2007 (21 days *ksh 312) Kshs. 6,552. 00

d) Unpaid leave for the year 2012 (1. 75 days *ksh 312) Kshs. 546. 00

e) Rest days from 2007 to 2012 (48 days*6Yrs*Ksh 312) Kshs.89,856. 00

f) Night shifts from 2007 to 2012 (*Yrs*Kshs 9,373) Kshs.56,238. 00

g) Gratuity/service pay (Kshs 9,373*6Yrs) Kshs.56,238. 00

h) 12 Months wages compensation as per Section 15 of the

Labour Institutions Act (12Mths*9,373) Kshs.112,476. 00

i) Interest at court rates

j) Certificate of Service

k) Cost of this suit.

The Respondent filed a Reply to the Memorandum of Claim and Counterclaim on 24th April, 2013. It denied dismissing the Claimant and averred that the Claimant resigned without notice. In the counterclaim the Respondent prayed for notice.

At the hearing the Claimant testified on his behalf while the Respondent called its Human Resource Manager, Mr. Joshua Onyango Ochilo who testified on Respondent’s behalf. The parties thereafter filed written submissions.

Claimant’s Case

The Claimant stated that he was employed by the Respondent on 3rd October, 2007 as a cleaner at a salary of Kshs.8,500. 00. He was promoted to turn boy in January, 2008 and worked in that capacity until 3rd March, 2012 when his employment was terminated. His last salary was Kshs.9,373. 00.

On 3rd March, 2012 he was sent to work in Athi River. While there he met other turn boys whom he learnt were being paid overtime. He asked the Supervisor for payment of overtime. The Supervisor sent him to the Personnel Officer who called the Assistant Personnel Officer to give him payroll numbers of the Claimant. The Assistant Personnel officer then pulled out the Claimant’s personal file and brought it to the office of the Personnel Officer, who sent the Claimant to the store to clear. The Claimant handed over his overall, helmet, gloves and staff identity card. After clearing the Claimant was informed that he had been dismissed. He was not told the reason for dismissal. He was not paid notice.

The Claimant testified that he did not take leave for 2007 and 2012. He worked for 7 days every week and was not paid overtime. He testified that while on safari he used to sleep in the vehicle guarding it while the driver went to sleep in a lodging. He denied that he resigned from employment.

Respondent’s Case

Joshua Onyango Ochilo testified that he joined the Respondent as Human Resources Manager on 4th December, 2012 and was aware of the Claimant’s case from records. He testified that the Claimant was employed by the Respondent on 1st March, 2008 and resigned on 3rd March, 2012. The Claimant was a turn boy and his last salary was Kshs.9,654. 00 per month.

The Claimant was not paid salary for February and March, 2012. The net salary for February after deductions was Kshs.5,657. 00. The deductions were NSSF (Kshs.200), NHIF (Kshs.200), Kenya Commercial Bank Loan (Ksh.3,097), company loan (Ksh.500). Total deductions were Ksh.3,997. 00.

Mr. Ochilo testified that the Claimant went to the Human Resource Office and expressed his desire to be released from duty. He was advised to go and write a letter of resignation which he failed to do. No step was taken by the Respondent when it did not receive the Claimant’s letter of resignation.

Mr. Ochilo testified that the Claimant was not in the Respondent’s employment in 2007 and is not entitled to leave for that year. Leave year for the Respondent is from July to June of the following year.

He testified that according to company policy no vehicle was on the road for more than 9 hours and the Claimant therefore did not work any overtime or on rest days. He further testified that the Respondent does not operate a night shift.

Issues and determination

The issues for determination are whether the Claimant resigned or was unfairly dismissed and whether the Claimant is entitled to the prayers sought.

The Claimant testified that he was dismissed verbally when he asked for payment of overtime like the turn boys who worked in Athi River. The Respondent on the other hand states the Claimant resigned.

Mr. Ochilo who testified on behalf of the Respondent stated that the Respondent did not have a letter of resignation from the Claimant and did not do anything when the Claimant failed to submit a letter of resignation or report to work. Mr. Ochilo was not in the Respondent’s employment at the material time. His evidence, unless corroborated, is of no probative value as it is hearsay. This leaves the evidence of the Claimant uncontested.

I find no reason to disbelieve the uncontested evidence of the Claimant and find that he was dismissed verbally by the Respondent’s then human resources officer.

This being the case, the Claimant is entitled to payment of one month’s salary in lieu of notice in the sum of Kshs.9,654. 00 (his last salary according to the testimony of Mr. Ochilo on behalf of the Respondent).

The Respondent admitted not paying the Claimant his salary for February and days worked in March, 2012. I therefore award the Claimant the same as follows:-

Salary for February 2012 Kshs. 9,654. 00

Salary for March 2012 (1st to 3rd) Kshs. 965. 40

Total Kshs.10,619. 00

The Claimant also prayed for leave for 2007 and 2012. The Respondent’s witness confirmed that the Claimant had not taken leave for 2012 which should be for the period July, 2011 to February, 2012 based on Respondent’s leave year. I award him Kshs.4,505. 20 being leave for 8 months at 1. 75 days per month.

The Respondent did not adduce any evidence to controvert the Claimant’s evidence that he was not paid leave for 2007. Having been employed in October, 2007 he was entitled to leave from October, 2007 to June, 2008. I award him Ksh.4,505. 20 being leave for the 8 months period from October, 2007 to June, 2008 based on his last salary.

The claimant did not adduce sufficient evidence to prove his claim overtime for night shift and rest days and I dismiss the claims.

The Claimant was a member of NSSF and is therefore not entitled to service pay. He did not adduce any evidence to prove his terms of employment provided for gratuity. I therefore dismiss the claim for gratuity/service pay on grounds that it has not been proved.

Having been unfairly terminated the Claimant is entitled to compensation for unfair termination. Based on the circumstances of his case, I award him compensation equivalent to 12 months’ salary in the sum of Kshs.115,848. 00

The Claimant is also entitled to costs and interest from date of judgment which I award him.

Dated ………………………..day of……………………………2015

MAUREEN ONYANGO

JUDGE

Delivered in Nairobi this 29th day of October 2015

HELLEN WASILWA

JUDGE