[2019] KEELRC 246 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 228 OF 2017

HENRY CHOME NGALA.............................................................CLAIMANT

VS

VICKERS SECURITY SERVICES LIMITED......................RESPONDENT

JUDGMENT

Introduction

1. By his Memorandum of Claim dated 24th March 2017 and filed in court on 27th March 2017, the Claimant sued the Respondent for compensation for unlawful termination of employment plus terminal benefits. The Respondent responded by way of Response dated 19th June 2017.

2. At the trial, the Claimant testified on his own behalf and the Respondent called its Mombasa Branch Manager, Said Alfan Bugu. Both parties further filed written submissions.

The Claimant’s Case

3. The Claimant states that he was employed by the Respondent on 7th April 2012, in the position of Security Guard, earning a monthly salary of Kshs. 8,500.

4. He further states that on 5th June 2016, his employment was terminated verbally by the Respondent’s Branch Manager, one Mr. Said.

5. The Claimant’s case is that the termination of his employment was unjustifiable and in violation of due procedure. He therefore seeks the following remedies:

a) Notice pay…………………………………………………………….…….Kshs. 13,250

b) Unpaid house allowance for 5 years……………………………….….119,250

c) 12 months’ salary in compensation…………………………………...159,000

d) Unlawful deductions…………………………………………………………….12,000

e) Underpayment…………………………………………………………………...191,000

f) Service pay for 5 years………………………………………………………….33,125

g) Costs plus interest

The Respondent’s Case

6. In its Response dated 19th June 2017, the Respondent states that the Claimant was employed at a consolidated monthly salary of Kshs. 8,500 as evidenced by contract dated 4th June 2012.

7. The Respondent avers that the Claimant was deployed at Kassam Hauliers Ltd with whom the Respondent had a service contract. The Respondent claims that the Claimant’s performance at Kassam Hauliers Ltd was below par.

8. The Claimant worked until 5th June 2016, when the service contract was terminated. The Claimant was summoned at the Respondent’s offices for re-deployment to Mombasa Island but he declined stating that the place of assignment was too far from his residence.

9. The Respondent’s case therefore is that the Claimant deserted duty. He was given an opportunity to return to work but he declined.

Findings and Determination

10. There are two (2) issues for determination in this case:

a) Whether the Claimant has made out a case of unlawful termination of employment;

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

Unlawful Termination?

11. In response to the Claimant’s claim that his employment was unlawfully terminated, the Respondent states that the Claimant declined an offer for re-deployment. The Respondent therefore maintains that the Claimant himself deserted duty.

12. The Court was unconvinced by the Respondent’s line of defence. First, there was no evidence that the Claimant was actually re-deployed after termination of the contract at Kassam Hauliers Ltd. Given that the Claimant’s employment was evidenced by a letter of appointment, any re-deployment would have been in writing.

13. Second, in its pleadings and testimony before the Court, the Respondent consistently accused the Claimant of poor performance and misconduct. In his witness statement dated 19th June 2017, the Respondent’s Branch Manager, Said Bugu states:

“All guards were redeployed to our Major assignment Grain Bulk Handlers Ltd except Henry who had worked and had been barred by the client from transacting any business within GBHL assignments because he was fond of sleeping while on duty. We had to cross post him to our contracted assignments Kassam Hauliers, Hass Petroleum and Weichai Enterprises where he had the same habit of sleeping cases where he was rejected too by all the clients. We had to plead with Kassam management for a reinstatement on a day shift where he worked until the termination of the assignment due to nonpayment of guarding services.”

14. It would appear therefore that the Respondent had issues with the Claimant’s performance long before termination of the contract with Kassam Hauliers Ltd. However, rather than confront the Claimant with those issues as required under Section 41 of the Employment Act, the Respondent chose to take the short cut of passively bringing the Claimant’s employment to an end.

15. If indeed the Claimant had deserted duty, the right thing for the Respondent to do would have been to put him on notice that termination of employment on this account was being considered. This procedure is now firmly grounded in case law (see Stanley Omwoyo v Board of Management Nakuru YMCA Secondary School [2015] eKLR and Dickson Matingi v Db Schenker Limited [2016] eKLR).

16. In light of glaring evidence that the Respondent did not bother to reach out to the Claimant to find out why he had failed to report to work and thereafter putting him on notice that his employment was on the line, the defence of desertion of duty is not available to the Respondent.

17. Overall, the Court finds and holds that the Respondent unlawfully and unfairly terminated the Claimant’s employment. The Claimant is therefore entitled to compensation on this account.

Remedies

18. Consequently, I award the Claimant six (6) months’ salary in compensation. In arriving at this award, I have considered the Claimant’s length of service and the Respondent’s conduct in the termination transaction.

19. I further award the Claimant one (1) month’s salary in lieu of notice.

20. The Claimant further claims house allowance. However, Clause A of his letter of appointment expressly provides that he was paid a consolidated salary, which would ordinarily include a housing component. The claim for house allowance is therefore without basis and is dismissed.

21. The claims for unlawful deductions and underpayment were not proved and are dismissed. No basis was laid for the claim for service pay which also fails and is dismissed.

22. In the end, I enter judgment in favour of the Claimant in the following terms:

a) 6 months’ salary in compensation………………………………………Kshs. 51,000

b) 1 month’s salary in lieu of notice…………………………………………………..8,500

Total…………………………………………………………………………………..…….59,500

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

24. The Claimant will have the costs of the case.

25. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 28TH DAY OF NOVEMBER 2019

LINNET NDOLO

JUDGE

Appearance:

Mr. Anaya for the Claimant

Mr. Chamwada for the Respondent