[2018] KEELRC 1332 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO. 1563 OF 2010

(Before D. K. N. Marete)

HUSSEIN YAHYA SEBIT.......................................CLAIMANT

VERSUS

ISLAMIC FOUNDATION.................................RESPONDENT

JUDGEMENT

This matter was brought to court vide The Claimants Memorandum of Claim dated 15th December, 2010. The issue in dispute is therein cited as;

Wrongful and unfair termination of the claimant’s services and failure by the Respondent to pay terminal benefits to the Claimant.

The respondent in a Reply to Claim dated 15th March, 2011 denies the claim and prays that the same be dismissed with costs. She also prays for judgement against the claimant as set out in the Counter Claim.

The claimant’s case is that on or about June, 2007 he was employed by the respondent. He earned Kshs.10,500. 00 per month. The claimant’s duties included carrying out sales, collecting rent, preparation of reports of rent collection, supervising junior staff and payment of bills. He was not issued with a letter of appointment as is required by law.

The claimant’s further case is that he served the respondent with loyalty and diligence until 1st February, 2010 when he was wrongfully and unlawfully terminated from service without notice or payment of terminal benefits.

The respondent further failed to pay the claimant’s salary for the month of October, November and December, 2009 and January and February, 2010. He was also not paid his severance pay, overtime and housing allowance. His terminal dues are tabulated as hereunder;

a. 1 month’s pay in lieu of Notice Kshs.10,500. 00

b. October, November and December 2009 salary Kshs.31,500. 00

January 2010 Kshs.10,500. 00

c. Severance pay for 3 years Kshs.18,170. 00

d. Housing allowance Kshs.25,626. 00

e. Wages underpayment Kshs.78,402. 00

f. Overtime Kshs.141,120. 00

TOTAL AMOUNT Kshs.315,318. 00

He therefore claims Kshs.315,318. 00 and 12 months compensation for wrongful dismissal, costs and interest.

This is as follows;

i) The sum of Kshs.315,318. 000as particularized in paragraph 5 of the claim.

ii) Compensation for wrongful dismissal to a maximum of 12 month’s wages amounting to Kshs.126,000

iii) Cost of this suit

iv) Interest in (i) and (ii) above

v) Any other relief as the court may deem just.

The respondent’s case is that she employed the claimant as a bookshop attendant but denies that he was charged with collection of rent, supervision of junior staff and or at all.

The respondent’s further case is that the claimant was summarily dismissed for misconduct when he was caught red handed shifting books from the store at Quran house without authority and also failing to account for the property (books) of the respondent which had been entrusted to him. The termination of the employment of the claimant was therefore justified and lawful.

The respondent’s other case is a denial of the claim on the following grounds;

a) The claim for one month’s salary in lieu of notice has no basis.

b) Housing allowance has no basis as the salary given was all inclusive as per the contract between the parties.

c) Claim for wages under payment is denied in toto.

d) Claim for overtime is denied in toto and the Claimant is put to strict proof thereof. Further the Respondent states that the Claimant has never worked overtime at any time.

e) The dismissal was not unfair given that he was summarily dismissed hence the claim for wrongful dismissal fails.

f) The claimant never worked for the Respondent for three (3) years hence the claim for severance pay for three (3) years is denied.

g) The claim for salary for the months of October, November and December 2009 and January 2009 is denied as the Claimant was paid and he is put to strict proof thereof. (annexed is a bundle of documents marked as “A”)

It is her penultimate case that the claimant was summarily terminated for gross misconduct as follows;

a) The respondent states that sometimes in October 2009 the Claimant was apprehended by removing a carton of books from the Respondent’s Store then at Qur’an House without authority and to date he has never given a satisfactory answer on this to date.

b) Fraudulently and intentionally falling to receipt and or document sales and receipts of books at Qur’an House Bookshop where he was stationed for example he obtained books from Sheikh Adan Hassan Chino worth Kenya Shillings Twenty Five Thousand (Kshs.25,000/-) for sale at the bookshop and there are no records of sales of the same and the said Creditor has been demanding this payments from the Respondent. We shall be calling evidence at the hearing.

c) The Claimant jointly with Badru Mapesa (then Respondent’s Administrator) fraudulently and intentionally exported the Respondent’s property (books) to Uganda worth over Kenya Shillings One Million Four Hundred and Ninety Six (Kshs.1,490,596/-) without its consent or authority.

The matte came to court variously until the 16th April, 2018 when the parties agreed on a determination by way of written submissions.

The issues for determination therefore are

1. Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful?

2. Whether the respondent is entitled to the counter-claim?

3. Whether the claimant is entitled to the relief sought?

4. Who bears the costs of this claim?

The 1st issue for determination is whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful. The claimant did not file any written submissions in support of his case. Perhaps he chose to rely on his case as set out in the pleadings.

The respondent in her written submissions dated 24th April, 2018 faults a case of unlawful termination of employment of the claimant for failure of the claimant to discharge the burden of proof of unfair termination as required of section 47(5) of the Employment Act, 2007 as follows;

47 (5)“For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer”

She emphasizes this by reliance of section 107 of the Evidence Act, Chapter 80, Laws of Kenya, which provides as follows;

i) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

ii) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

She further submits that it is trite law that he who asserts, not he who denies must prove ( ei incumbit probation qui dicit, non qui negat.)

The respondent further forments a case of lawful termination of employment as follows;

i) Employment is terminable and must not necessary be forever.

ii) Like any other contract, termination of Employment may be done by either the employer or the employee.

iii) An employer can terminate the employment of the employee as long as the reason for the termination is a fair and valid based on the employee’s conduct, capacity or compatibility.

iv) The claimant has no factual or legal basis for alleging that the Respondent unlawfully terminated his services. The allegations are lacking in merit and are intended to embarrass the Respondent despite the indulgence the Respondent accorded the Claimant in repeated rudeness, gross carelessness and refusal to receive lawful commands.

v) The Claimant was lawfully summary dismissed for lawful cause.

vi) The Respondents plead and submits that the Claimant was lawfully summarily dismissed and hence the issue of unfair termination is misconceived.

vii) The Respondent has succinctly demonstrated he summarily dismissed the Claimant for rudeness, bad attitude and that he got to a point where he would not take any instructions.

viii) The Claimant had behaved in a manner that is insulting to his employer and thus was summarily dismissed for failing to obey instructions.

ix) The Claimant did not prove that unfair termination occurred as required by law and hence is undeserving of any relief.

She submits total compliance with section 44(4) of the Employment Act, 2007 which provides for summary dismissal as follows;

(44) (4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (32) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if:-

a. without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;

b. during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;

c. an employee willfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;

d. an employee uses abusive or insulting language, or behaves in a manner insulting; to his employer or to a person placed in authority over him by his employer;

e. an employee knowingly fails, or refused, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.

f. in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or

g. an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.

The claimant on the other hand denies the case of misconduct as a defence. It is his case that he was unlawfully terminated vide a letter dated 1st February, 2010 in breach of section 35, 36 and 45 of the Employment Act, 2007. He also denies the counter-claim as set out and pleaded.

The claimant in his annexed list of documents annexes a letter of termination and also a certificate of service dated 1st February, 2010 and 28th February, 2010 respectively. He does not in all outrightly demonstrate a case of unlawful termination in any substantive evidence.

However, the respondent’s case is equally anomalous. It does not in any way establish pursuance of section 41(1) and (2) of the Employment Act, 2007 which provides as follows;

41. (1).Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.

The termination of the employment of the claimant therefore lapsed in substantive and procedural fairness as provided by sections 41 and 43 of the Employment Act, 2007 and therefore cannot be condoned. There is no evidence of the claimant being taken through any form of disciplinary proceedings, or at all. Lack of appropriate disciplinary proceedings in the circumstances culminated in a case of unlawful termination of employment of which I find. And this answers the 1st issue for determination.

The 2nd issue for determination is whether the respondent is entitled to the counter-claim. The counter-claim is denied by the claimant. It is not demonstrated or at all by the respondent. It remains a counter-claim and nor more. There is no evidence adduced to support this, or at all. It therefore fails from the onset. The respondent would not earn any accolades based on air.

The 3rd for determination is whether the claimant is entitled to the relief sought. He is Having won on a case of unlawful termination of employment, he becomes entitled to the relief sought.

I am therefore inclined to allow the claim and order relief as follows;

i. One (1) months pay in lieu of notice…………………………………Kshs.10,500. 00

ii. Eight (8) months compensation for unlawful

termination of employment = kshs.10,500. 00 x 8 =……………..Kshs.84,000. 00

Total of Claim………………………………………………………..…Kshs.94,500. 00

iii. The costs of this claim shall be borne by the respondent.

iv. The costs of this claim be and are hereby assessed at Kshs.30,000. 00

Dated and signed this 19th day of July, 2018.

D.K. Njagi Marete

JUDGE

Delivered and signed this 25th day of July, 2018.

Maureen Onyango

PRINCIPAL JUDGE

Appearances

1. Miss Said Instructed by Swann Advocates for the claimant.

2. Mr. Yusuf Instructed by Ali & Company Advocates for the respondent.