[2022] KEHC 1532 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1345 OF 2016

ISAAC LUMUMBA OMEGA.....................................................................CLAIMANT

VERSUS

SPECIALIZED AIR CONDITIONING LIMITED..............................RESPONDENT

JUDGEMENT

INTRODUCTION

1. The Claimant filed the claim on 12th July 2016. The Response was filed on the 11th August 2016. Parties also filed list of documents as well as witness statements.

CLAIMANT’S CASE

2. The Claimant was employed by the Respondent as a mechanic at a monthly salary of ksh 12,000/= per month with effect from 15th October, 2014. It is said the employment contract was done orally and was never reduced into writing contrary to the provisions of section 9 of the Employment Act. The Claimant asserts that this is a manifestation of unfair labour practices by the Respondent.

3. The Claimant says he worked with due diligence and faithfulness until on or about 16th July, 2015 when the Respondent wilfully and wrongly terminated the employment contract without giving any reasons at all.

4. The Claimant claimed that the Respondent terminated his employment without giving him any notice or letter to show cause why he should not be terminated or subject him to disciplinary proceedings which is contrary to the provisions of section 41 of the Employment Act. It is further claimed that the Respondent has refused to pay the Claimant’s salary arrears and other dues contrary to the provisions of the law. The said termination was in bad faith and a breach of the principles of natural justice.

5. The Claimant was not paid house allowance as mandatorily required by the provisions of Section 31 of the Employment Act, 2007. The Claimant used to work overtime and was never compensated for the same. The claimant says he was also entitled to bonus which was never paid.

6. The Claim prays for the following;-

(a) One month’s salary in lieu of notices Kshs.12,000/-.

(b) Transport allowance Kshs.33,000/=.

(c) Overtime Kshs.18,000/=.

(d) House Allowance-15% of

basic pay = 2250 x 9 months 20,250

(e) Bonus Kshs.220,000/=.

(f) 12 months’ salary compensation

= 12,000 x 12 =132,000

TOTAL Kshs.= 435,250

DEFENCE

7. In defence, the Respondent admits to have employed the Claimant at a consolidated salary of Kshs.12,000 per month. The Claimant was dismissed from employment on the 15/07/2015 due to gross insubordination, wilful neglect of duty, failure to obey lawful and proper commands and use of abusive and insulting language to his workmates and personnel placed in authority over him by his employer.

8. The Respondent says he was thus in law entitled and did summarily dismiss the claimant under the provisions of section 44 of the Employment Act, 2007. The Respondent denies that the Claimant ever worked for overtime or that he was entitled to any bonus on repairs as alleged by the Claimant. The Respondent says that the claimant is indebted to the Respondent for a sum of Kshs.6,000 being a salary advance and a further Kshs.7,000 in the form of a loan. The Respondent prays that the Claimant’s claim be dismissed with costs.

CLAIMANT’S EVIDENCE

9. The Claimant testified that the Respondent was his employer from 18/10/2014 where he worked as a mechanic. He was earning Kshs.12,000/= but was not getting house allowance. He adopted his witness statement dated the 6th July 2016 as his evidence in chief and the list of documents from appendix 1-3 as the Claimant’s exhibits.

10. The claimant says that he was beaten by his boss and the Manager following of which he went to the hospital and got ex-rays. The claimant got P3 form and the boss was arrested and taken to the industrial area police station. The Claimant was given Kshs.50,000/= by the Respondent for treatment and was informed that there was no work for him anymore . He got no letter for the termination. There was no disciplinary process and he was never paid his dues. He prayed for Kshs.435,450/= together with interests and costs.

11. In cross-examination he said he used to be paid

Kshs.12,000/= per month which was only salary for Grade 1 mechanic and was not consolidated. He used to work overtime and so he is asking for bonus for all the cars he repaired. He says he never used abusive language at the work place and he has never sent message about one Salim to anybody.

RESPONDENT’S CASE

12. RW1 Ranjeet Singh Saqoo said that he was the Respondent’s Director. He said that he knows the Claimant as he had worked for his Company for 9 months. The witness adopted the statements dated the 4th August 2016 as his evidence in chief and the list of documents as exhibits.

13. He said the claimant left employment when he fought with the manager, Salim. The claimant reported the case to the police then they parted ways. He says they had problems with the claimant since he was abusive. The Claimant was not entitled to house allowance or overtime. The Claimant used to work from 8. 30 am to 5pm. There is no attendance register.

14. The claimant was dismissed on the 16/7/2016. He said the claimant was told to collect dismissal letter and his dues. The claimant was given reason why his job was being terminated after he had been warned of his bad behaviour. He said he was never present when a verbal abuse took place in the conversation between the Claimant and one Anita but that the information was transcribed. The Claimant owes the Respondent Kshs.13,000/= being advance of Kshs.7,000/= and Kshs.6,000/= respectively.

SUBMISSIONS

15. The claimant submitted that he was terminated without any reasonable cause. He contends that whereas the Response indicated that he was terminated because of gross insubordination and failure to obey lawful orders, the same was not communicated to him at the time of termination and as such this could only be an afterthought by the Respondent.

16. The Claimant relied upon section 41 of the Employment Act which requires that 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.

17. The Claimant relied on the case of Janet Nyandiko versus Kenya Commercial Bank Limited (2017) EKLR for the proposition that for any termination to be deemed fair, the honourable court must not only consider the reasons for termination but also how the said reasons were communicated to the employee. The Claimant further submits that he was not given any hearing.

18. The Claimant relied also upon the case of Elizabeth Washeke & Others versus Airtel (k) Ltd and Another 1972 of 2012where the Court stated that the provisions of section 41 of the EA are mandatory and any decision reached in disregard of the said provisions is ultimately unfair. On the remedies, the Claimant prays to court for one month salary in lieu of notice, transport allowance, overtime, house allowance, bonus and 12 months’ salary compensation.

RESPONDENT’S SUBMISSIONS

19. The Respondent reiterated that the Claimant was terminated for gross insubordination, sabotaging repair works and gross incompetence. It is said that the claimant was very discourteous to the Managing Director of the Respondent as proved by the recorded conversation by one Anita who it is said was the girl friend to Salim, also an employee of the Respondent. It is also said he failed to obey lawful orders leading to delay in completion of repair works. The Respondent submitted that the claimant had stage managed his exit from the Respondent Company as can be seen from the recorded conversation.

20. It is further submitted that the Respondent explained to the claimant the reasons for the termination in accordance with the provisions of section 43 of the Employment Act. It is said that the Claimant never went to work following the altercation with the one of the Respondent’s employees.

21. The Respondent contended that having been summarily dismissed for misconduct, the claimant was not entitled either to notice or payment in lieu thereof. The Claimant earned a negotiated consolidated salary and had no house allowance. The Respondent urged the court that the claimant was not entitled to compensation for wrongful compensation as he was dismissed for repeated acts of gross insubordination. In relation to transport allowance, bonus and overtime, it is urged on behalf of the Respondent that no factual and legal basis has been laid for the same and the Court is urged to disallow the prayers thereof.

ISSUES FOR DETERMINATION

22.

(i) Was Claimant unlawfully terminated.

(ii) Is he entitled to any remedies?

DECISION

23. It is Common cause that the claimant during the period from 15th October, 2014 to 16th July 2015 was in the employ of the Respondent. It therefore remains to be decided whether he was unfairly terminated and the remedies, if any, he is entitled to.

24. Section 45(1) of Employment Act provides;

“(1) No employer shall terminate the employment of an employee unfairly.

(2) A termination of employment by an employer is unfair if the employer fails to prove;

(a) that the reason for the termination is valid;

(b) that the reason for the termination is a fair reason?

(i) related to the employees conduct, capacity or compatibility; or

(ii) based on the operational requirements of the employer; and

(c) that the employment was terminated in accordance with fair procedure.”

25. Flowing from the above mandatory provision of the law, termination of an employee’s contract of service does not pass the test of fairness unless the employer demonstrates that it was done on the basis of valid and fair reasons and upon following fair procedure.

26. In Swaleh David versus Premier Cookies Limited (2021) eKLR,the Court stated that ‘Under Section 45 of the Employment Act, termination of an employee’s contract of service is unfair and therefore unlawful if the employer fails to prove that it was grounded on a valid and fair reason and that a fair procedure was followed. A reason is valid and fair if it relates to the employee’s conduct, capacity and compatibility or based on the employer’s operation requirements. On the other hand, procedure is fair if the employer accords the employee a fair hearing in the presence of another employee of his choice and the representation made by the employee and his companion are considered before making the decision to terminate the contract.” This is parallel to the mandatory provisions well set out in Section 41 of the Employment Act.

27. There are rival and somewhat contradictory statements by both the claimant and the Respondent as to how the claimant left the employment of the Respondent in the evidence. The claimant, however, in sum is alleging that he was terminated without a valid reason. The key reasons cited by the Respondent for the termination of the Claimant is gross insubordination, sabotaging repair works and gross incompetence. Central to the issues of gross insubordination is the telephone conversation said to have taken place between the claimant and the girlfriend to one of the Respondent’s employee by the name Anita. The said Anita was a third party and was not an employee of the Respondent at the time. She was not a witness also in this case.

28. Whilst it is apparent that the claimant at least foresaw the possibility of their conversation being passed to the Respondent, the Respondent ought at least to have called the said Anita to give evidence in Court since it is the conversation that the Company mainly relied upon in their case for gross insubordination. At any rate, it is not alleged that the claimant made the call whilst at the workplace in the presence of his workmates. The Respondent’s own witness confirmed not to have heard the conversation between the Claimant and the said Anita.

29. I have also looked at the rival evidence regarding the alleged altercation between the claimant and the Respondent’s employee by the name Salim. It is not possible to reach any decision on the issue since no police records have been furnished by either party regarding the incident. The Respondent under section 74 of the Employment Act 2007 is tasked with the keeping of employment records and should have furnished the court with documents regarding the departure of the claimant from their Company.

30. The upshot of the foregoing is that the reasons for termination of the claimant employment are not proved and so amounts to unfair termination and in breach of section 45 of the Employment Act 2007. There are no documents tabled regarding issuances of notice of and hearing of the employee before termination and no termination letter was produced in court. The court finds the Respondent’s case is half baked. Therefore there was no reason given in the said termination letter as to the reason for termination. Court also finds that there was no compliance with

Sections 41 of the Employment Act and Sections 43 and 45 of the said act and so find Claimant was unlawfully terminated.

REMEDIES

31. I turn to consider the remedies, if any, that the claimant is entitled to;

(a) The claimant has prayed for one month pay in lieu of notice. There is no evidence that the same has been paid. The court grants the claimant one month pay in lieu of notice Kshs.12,000/=.

(b) The Claimant has prayed for the 12 months’ salary compensation for unlawful termination. Both the claimant and the Respondent agrees, save for the issue of consolidation, that Kshs.12,000/= was being paid to the claimant as salary. Taking into account the circumstances of the case and the short period of around 9 months the Claimant had served the Respondent, two months gross salary compensation under section 49(1) of the Employment Act would be appropriate. This amounts to Kshs.24,000/=.

(c) The Claimant’s prayer for transport allowance is disallowed because at the time he was employed he never sought payment of transport allowance.

(d) House allowance is allowed as the Respondent did not produce records to prove the salary was inclusive of house allowance Kshs.20,250/=.

(e) Overtime is not specified and is declined.

(f) Bonus is also not specified and is disallowed.

32. The Claimant is awarded costs and interest at court rates from date of Judgement until payment in full.

33. The final award amounts to Kshs.56,250/=.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 15TH DAY OF MARCH, 2022.

ANNA NGIBUINI MWAURE

JUDGE

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules,which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1Bof the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

A signed copy will be availed to each party upon payment of court fees.

ANNA NGIBUINI MWAURE

JUDGE