[2017] KEELRC 1282 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 936 OF 2016

HASSAN MUHUMED MOHAMUD…................................………………..CLAIMANT

VERSUS

THE SPEAKER

WAJIR COUNTY ASSEMBLY…………………....................…….1STRESPONDENT

THE SECRETARY

WAJIR COUNTY ASSEMBLY SERVICE BOARD.......................2NDRESPONDENT

COUNTY ASSEMBLY SERVICE BOARD WAJIR COUNTY……3RDRESPONDENT

JUDGMENT

Introduction

1. Hassan Muhumed Mohamud, the Claimant in this case, worked as the Personal Assistant to the Minority Leader, Wajir County Assembly. He brought this claim pursuant to termination of his employment on 31st December 2015.

2. The Respondents were duly served but did not file any reply. On 27th October 2016 my brother, Abuodha J directed that the matter proceeds as an undefended claim. I heard the Claimant’s case on 6th February 2017 after which his Advocate filed final submissions.

The Claimant’s Case

3. On 14th July 2014, the Claimant was offered an appointment as Personal Assistant to the Minority Leader, Wajir County Assembly on a three (3) years’ contract effective 1st August 2014. At the end of the contract, the Claimant was to be paid 31% of his basic salary for each year in service as gratuity.

4. On 10th January 2016, the Claimant received a letter dated 3rd December 2015 from the 2nd Respondent, terminating his employment with effect from 31st December 2015. The Claimant states that this letter came as a surprise to him as he had no disciplinary issues throughout his employment period. He claims that the termination was unilateral, malicious and unjustifiable. He adds that upon termination he was not paid his terminal dues.

5. The Claimant’s claim is as follows:

a. A declaration that the termination of his employment was unfair

b. Salary in lieu of notice………………………………………………………...Kshs. 64,910

c. Salary for the remainder of contract period (20 months)…………1,298,200

d. Gratuity for 3 years…………………………………………………42,594

e. General damages

f. Certificate of service

g. Costs plus interest

Findings and Determination

6. There are two issues for determination in this case:

a. Whether the termination of the Claimant’s employment was lawful and fair;

b. Whether the Claimant is entitled to the remedies sought.

The Termination

7. The Claimant’s employment was terminated by letter dated 3rd December 2015 stating as follows:

“Dear, Hassan Muhumed Mohamud

RE: TERMINATION OF EMPLOYMENT

We regret to inform you that your employment with Wajir County Assembly is hereby terminated with effect from 31st December 2015 vide County Assembly Service Board decision reached on 30th

November 2015.

The Assembly will pay you one month severance pay which is the month of December 2015.

Kindly return any property of the institution under your care.

The County Assembly Service Board thanks you for the services rendered during your stay and wishes you the best in your future employment.

Thanks

Yours Sincerely,

MR. OSMAN M. ADAN

CLERK/SECRETARY

COUNTY ASSEMBLY SERVICE BOARD”

8. This letter discloses no reason for termination of the Claimant’s employment. In his testimony before the Court, the Claimant stated that he did not know why his employment was terminated. The Respondents’ action in this regard was clearly in contravention of Section 43 of the Employment Act, 2007 which requires an employer to demonstrate a valid reason for terminating the employment of an employee. In the circumstances, the Court was unable to gauge the reasonableness of the Respondents’ action as defined by Lord Denning in British Leyland UK Ltd v Swift [1981] IRLR 91.

9. Moreover, the Claimant was no subjected to the mandatory disciplinary procedure set out under Section 41 of the Employment Act and as held by the Court of Appeal in CMC Aviation v Mohammed Noor [2015] eKLR where an employee is not given an opportunity to be heard, the ensuing termination is unfair within the meaning of Section 45 of the Act.

Remedies

10. Overall, the Court finds the termination of the Claimant’s employment substantively and procedurally unfair and awards him six (6) months’ salary in compensation. In making this award I have taken into account the unexplained unilateral decision to terminate the Claimant’s employment. I further award the Claimant one (1) month’s salary in lieu of notice.

11. At termination, the Claimant had a running three (3) year contract at the end of which he would have earned gratuity. In light of the finding that the termination was unlawful and unfair, I award him gratuity for the full term of the contract.

12. The Court found no basis for the claims for salary for the remainder of the contract and general damages which are dismissed.

13. Ultimately I enter judgment in favour of the Claimant as follows:

a. 6 months’ salary in compensation……………………………………Kshs. 383,460

b. 1 month’s salary in lieu of notice…………………………………………………63,910

c. Gratuity (35,910x31%x3)…………………………………………………………….33,396

Total……………………………………………………………………………………….480,766

14. This amount will attract interest at court rates from the date of judgment until payment in full.

15. The Claimant is also entitled to a certificate of service and the costs of this case.

16. Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI

THIS 26TH DAY OF MAY 2017

LINNET NDOLO

JUDGE

Appearance:

Mr. Kaingu for the Claimant

No appearance for Respondent