[2019] KEELRC 423 (KLR)
The court found that the claimant's employment was terminated without due process, as the respondent failed to issue a notice of termination or afford the claimant an opportunity to be heard, in breach of Sections 35(1)(c) and 41 of the Employment Act, 2007. The respondent did not challenge or rebut the claimant's...
Source-derived case information.
- Citation
- [2019] KEELRC 423 (KLR)
- Parties
- Claimant: Gideon Kisaka Makaka; Respondent: Dimamu Agencies Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 784 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; judgment for claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Statutory Entitlements, Earned Wages, Annual Leave, Rest Days, Overtime Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gideon Kisaka Makaka
Claimant
Dimamu Agencies Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unfairly terminated in violation of statutory procedure.
- 2 Whether the claimant is entitled to compensation for unfair termination and other contractual/statutory dues.
Ratio Decidendi
The court found that the claimant's employment was terminated without due process, as the respondent failed to issue a notice of termination or afford the claimant an opportunity to be heard, in breach of Sections 35(1)(c) and 41 of the Employment Act, 2007. The respondent did not challenge or rebut the claimant's evidence. The court held that the claimant was entitled to compensation for unfair termination, earned wages, leave, rest days, and overtime pay, but not house allowance or service pay due to the inclusion of house allowance in daily rates and the claimant's membership in the National Social Security Fund. The court also ordered the respondent to issue a certificate of service...
Court Disposition
Claim allowed in part; judgment for claimant.
Orders
- The termination of the claimant's employment is declared unfair.
- The respondent is ordered to pay the claimant Kshs 40,000 as compensation for unfair termination.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 784 OF 2017
GIDEON KISAKA MAKAKA..........................................................CLAIMANT
v
DIMAMU AGENCIES LIMITED..............................................RESPONDENT
JUDGMENT
1. On 20 November 2017, the Court directed that the Cause proceeds to hearing undefended because the Respondent though served had only filed a Notice of Appointment but failed to file a Response.
2. On 15 October 2019, a day before the hearing, the firm of Kariuki & Runo Advocates filed a Notice of Change of Advocate to come on record for the Respondent.
3. An attempt by the Respondent’s new advocate on record to secure leave to file a Response out of time, and also get an adjournment on the day of the hearing on 16 October 2019 was declined by the Court. It needs no gainsaying that the Respondent despite causing an advocate to come on record on 13 July 2017 had failed to file a Responsewithout tendering any sufficient reason.
4. Gideon Kisaka Makaka (Claimant) testified) and adopted his written witness statement) but was not cross-examined because the Respondent’s advocate on record left the Court after the Court declined to adjourn.
5. In the view of this Court, the conduct of the advocate of the Respondent leaving the Court after Court declined to adjourn was not only unceremonial but uncourteous and professionally negligent.
6. The Claimant filed his submissions on 29 October 2019 and the Court has considered the pleadings, evidence and submissions.
Unfair termination of employment
7. The Claimant’s testimony that he was dismissed without being afforded an opportunity to be heard on 6 September 2016 (dismissal letter collected on 14 September 2016) was not challenged or rebutted.
8. Section 35(1)(c) of the Employment Act, 2007 requires an employer to issue a written notice of termination of employment (unless it is a case of summary dismissal) while section 41 of the Act obligates the employer to afford the employee an opportunity to be heard.
9. There was no evidence before the Court that the notice was issued, or that the Claimant was heard, and the Court finds that the Claimant has proved that there was unfair termination of employment.
Compensation
10. The Claimant served the Respondent for about 2 years and in consideration of the length of service, the Court is of the view that the equivalent of 2 months’ gross wages as salary would be fair (gross salary according to the witness statement was Kshs 20,000/-).
Breach of contract
Earned wages
11. An employee is entitled as of right to earned wages. The Claimant sought Kshs 3,846/- being wages up to date of separation. He is entitled to the wages.
Leave
12. Annual leave of at least 21 days is a statutory entitlement of all employees. The Claimant sought Kshs 37,692/- on account of leave.
13. The Claimant stated that he never proceeded on leave during the 2 years of employment. The Court will allow this head of the claim.
Rest days
14. The Claimant’s evidence that he worked 7 days a week remained unchallenged. Each employee is entitled to at least 1 rest day each week.
15. Consequently, the Court will allow this head of the claim in the sum of Kshs 92,307/- as sought.
Overtime
16. Equally, the Claimant’s testimony that he worked during public holidays without payment of overtime remained unchallenged and the Court allows this head of the claim in the sum of Kshs 8,461/-.
House allowance
17. The Claimant’s wage was computed using a daily rate and paid every fortnight. Such daily rates include an element to cover house allowance, and therefore the Court will decline to grant any relief in respect to house allowance.
Service pay
18. A copy of the Claimant’s payslip produced in Court shows that he was a contributor and/or member of the National Social Security Fund.
19. The Claimant also produced a copy of his statement of Account from the Fund. He is therefore ineligible for service pay by dint of section 35(5) & (6) of the Employment Act, 2007.
Certificate of Service
20. A certificate of service is a statutory entitlement and the Respondent should issue one to the Claimant within 21 days.
Conclusion and Orders
21. The Court finds and declares that the termination of the Claimant’s employment was unfair, and further that the Respondent was in breach of contract/statute and awards the Claimant
(a) Compensation Kshs 40,000/-
(b) Earned wages Kshs 3,846/-
(c) Leave Kshs 37,692/-
(d) Rest days Kshs 92,307/-
(e) Overtime Kshs 8,461/-
TOTAL Kshs 182,306/-
22. The Claimant to have costs.
Delivered, dated and signed in Nairobi on this 8th day of November 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Muli instructed by Muli & Co. Advocates
For Respondent Kariuki Runo & Co. Advocates
Court Assistant Lindsey