[2018] KEELRC 1963 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1335 OF 2010

IDII ABDI BARUTI..................................................CLAIMANT

VERSUS

ABDI NUUR MIREDEGE..................................RESPONDENT

JUDGMENT

1. Idii Abdi Baruti (Claimant) sued Abdi Nuur Miredege (Respondent) on 28 October 2010 alleging unfair termination of employment and breach of contract. He sought a total of Kshs 148,200/-.

2. In a Statement of Defence filed in Court on 21 April 2011, the Respondent contended that the Claimant absconded from duty. The Respondent also denied being in breach of contract.

3. The Claimant testified on 19 January 2018 while the Respondent testified on 24 April 2018.

4. Claimant filed his submissions on 7 May 2018 and the Respondent filed his submissions on 14 May 2018.

5. The Court has considered the pleadings, evidence and submissions and identified the Issues for Determination as

Whether Claimant absconded or had his employment unfairly terminated

Whether there was breach of contract and Appropriate remedies.

6. Before examining the Issues arising, the Court notes that both parties were incoherent in their testimonies.

Abscondment or unfair termination

7. The Claimant pleaded a case of unfair redundancy and testified that the Respondent verbally terminated his contract on 14 May 2010.

8. The Respondent on the other hand contended that the Claimant absconded from work on 2 May 2010 and only returned on 14 May 2010.

9. In an attempt to demonstrate that the Claimant absconded from work, the Respondent testified that the Claimant worked until 2 May 2010 and returned on 14 May 2010 when he informed him that he had secured alternative employment in Mombasa.

10. According to the Respondent, the Claimant requested for a loan of Kshs 11,000/- to enable him relocate and settle in Mombasa which he gave him.

11. In the view of the Court, it is improbable that the Respondent would have advanced the Claimant the loan to settle in Mombasa if he had absconded from work on the very day he reported back after a two week absent.

12. What makes the narration equally unbelievable is that the Respondent testified that the Claimant had misappropriated some sales money sent to him through mpesa.

13. On his part, the Claimant stated that the Respondent informed him on 14 May 2010 that he intended to sell the business/shop and asked him to look for alternative employment.

14. The Claimant despite pleading redundancy did not refer at all in testimony to the conditions under section 40 of the Employment Act, 2007 that the Respondent did not comply with.

15. Further, the Claimant however did not interrogate at all the Respondent’s assertions that he (Claimant) indicated he wanted to relocate to Mombasa and that he was given a loan of Kshs 11,000/- to be refunded.

16. It is curious, in the view of the Court, that the Respondent advanced the Claimant Kshs 11,000/- to help him relocate or settle down in Mombasa (which the Claimant did not deny or question in cross examination) to help him settle in Mombasa if his employment had been terminated.

17. Did the Claimant on his part prove that there was unfair termination of employment on account of redundancy?

18. The Claimant pleaded his case as one of redundancy.

19. In examination in chief, the Claimant was content with testifying that the Respondent informed him that he was selling the shop and that the shop was still operating by the time of the hearing.

20. The Claimant, however did not lay an evidential basis to enable the Court determine whether this was a case of redundancy.

21. The Court is therefore unable to see a nexus between the pleaded case and evidence and concludes that the Claimant failed to discharge the burden imposed on him by section 47(5) of the Employment Act, 2007.

Breach of contract

Service/gratuity

22. No evidential or contractual basis for the payment of service gratuity was laid before Court.

23. The Court also notes that the Claimant’s pleaded case was redundancy and service/gratuity is not part of the entitlements in such a case. The applicable entitlement would be severance pay.

Leave days

24. The Claimant stated that he was employed on 12 May 2008, and that the separation with the Respondent was on 14 May 2010. He asserted that he did not go on leave during the period of employment, and therefore he was seeking Kshs 12,600/-.

25. The Respondent however contended that the Claimant was employed on 27 May 2009 and served until 2 May 2010. He stated that the Claimant went on leave for about 20 days but he did not have records.

26. In consideration of section 10(3) & (7) of the Employment Act, 2007, the Court can conclude that the Claimant laid an evidential basis for the payment of the pay in lieu of leave.

Overtime

27. Work beyond the contractually agreed or prescribed minimum hours should be compensated.

28. The Claimant did not refer the Court to any Regulation of Wages Order applicable to the sector the Respondent operated in.

29. Although contending he worked overtime during public holidays, the Claimant did not disclose the formula he used to arrive at the pleaded sum of Kshs 6,600/- or testify as to the working hours in his examination in chief.

30. The Court is therefore unable to determine whether Claimant is entitled to the overtime pay.

Appropriate remedies

31. In light of the above, the only remedy the Court finds the Claimant is entitled to, is pay in lieu of leave.

Conclusion and Orders

32. The Court finds and holds that the Claimant failed to discharge the burden placed upon him to show unfair termination of employment on account of redundancy and/or breach of contract, save for leave.

33. The Claimant is awarded Kshs 12,600/- on account of leave. No order on costs.

Delivered, dated and signed in open Court in Nairobi on this 21st day of May 2018.

Radido Stephen

Judge

Appearances

For Claimant Ms. Ochogo instructed by Maina Gakoi & Co. Advocates

For Respondent Mr. Wasonga instructed by Omondi Wasonga & Co. Advocates

Court Assistant Lindsey