[2017] KEELRC 1315 (KLR)
The court found that the Claimant's employment was terminated without a valid reason and without adherence to fair procedure, as required by Sections 43 and 45 of the Employment Act. The Claimant had notified the employer of his delayed return, and there was no evidence of misconduct or rudeness. The Respondent...
Source-derived case information.
- Citation
- [2017] KEELRC 1315 (KLR)
- Parties
- Claimant: Isaac Nyamai Lavi; Respondent: Tholas Glass Enterprise Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1140 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the Claimant; termination declared unfair and unlawful; compensation and terminal benefits awarded.
- Legal Topics
- Unfair Termination, Procedural Fairness, Compensation for Termination, Notice Pay, Leave Entitlement, Overtime Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Isaac Nyamai Lavi
Claimant
Tholas Glass Enterprise Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was for a valid reason and in accordance with fair procedure.
- 2 Whether the Claimant is entitled to compensation and terminal benefits for unfair and unlawful termination.
Ratio Decidendi
The court found that the Claimant's employment was terminated without a valid reason and without adherence to fair procedure, as required by Sections 43 and 45 of the Employment Act. The Claimant had notified the employer of his delayed return, and there was no evidence of misconduct or rudeness. The Respondent failed to issue a notice to show cause or provide an opportunity for the Claimant to be heard before termination. The court concluded that the termination was both substantively and procedurally unfair, entitling the Claimant to compensation and terminal benefits as stipulated by law and the parties' agreement.
Court Disposition
Judgment for the Claimant; termination declared unfair and unlawful; compensation and terminal benefits awarded.
Orders
- The Respondent shall pay the Claimant Kshs.92,400 as compensation for unfair termination.
- The Respondent shall pay the Claimant Kshs.30,800 in lieu of notice.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1140 OF 2014
ISAAC NYAMAI LAVI….………………................……….... CLAIMANT
VERSUS
THOLAS GLASS ENTERPRISE LTD…...……..……… RESPONDENT
Claimant in person
Mr. Malabu for Respondent
JUDGMENT
1. The Claimant was employed as a machine operator by the Respondent on 23rd October 2010 at a basic monthly salary of Kshs.30,800/=.
2. The Claimant worked continuously until the 8th January 2013, when the Respondent terminated his employment for reporting a day late after the Christmas Holidays.
3. The Claimant had a good record and worked diligently and according to RWI the witness for the Respondent, the Claimant should have received a first warning for the offence.
4. The Claimant and RWI conceded that the Claimant had sent an e-mail message to the Managing Director explaining that he was unable to get transport from home to Nairobi and would be late to report work by a day. However when the Claimant reported to work, he was confronted by a supervisor on the matter and was sent home without a notice to show cause, or an opportunity to explain himself before a disciplinary panel.
5. The counsel for the Respondent insinuated under cross examination that the Claimant was rude when he was asked about his absence, however, this was not supported by RW1, the witness for the Respondent. The Claimant denied that he was rude stating that he had a very good relationship with all staff, a contention which was supported by RW1 for the respondent.
6. The court is satisfied that the employment of the Claimant was terminated for no valid reason and without following a fair procedure. The termination therefore violated section 43 as read with section 45 of the Employment Act, and is wrongful and unfair. The Claimant is entitled to compensation in terms of section 49 of the Act.
7. The Claimant served the Respondent for more than two years. He did not contribute to the termination. Was sent home without notice and without payment of terminal benefits. He still wished to continue working and has suffered loss and damage.
8. The court awards the Claimant equivalent of three (3) months salary, compensation for the unlawful and unfair termination of employment in the sum of Kshs.92,400/=.
Terminal benefits
i. Notice Pay
The Claimant was not paid in lieu of one month notice and he earned Kshs.30,800/== at the time of termination. Court awards him Kshs.30,800/= in lieu of notice.
ii. Leave Pay
The Claimant was not paid in lieu of 12 days leave in the year 2011/2012 and the court awards him Kshs.15,400/= in lieu of leave.
iii. Agreed Compensation
The parties agreed on payment of Kshs. 200,000 for the arrear payments in terms of the CBA and a handwritten clause was put in the letter of appointment by the Respondent and duly signed to this effect. The Respondent had part paid Kshs.40,000/= pursuant to the agreement and the court awards the Claimant the balance of Kshs.160,000/=
iv. Overtime
The Claimant also proved on a balance of probability that he worked overtime of 109 hours, during Saturdays between September 2010 and December 2012 and was not paid overtime in the sum of Ksh. 61,000/=. The court awards the Claim accordingly.
v. Service Pay
The Claimant was registered with NSSF and same was remitted. He is not entitled to payment of service gratuity as claimed.
vi. The Respondent is to provide the Claimant with Certificate of service within 30 days of this judgment.
9. In the final analysis this court awards the Claimant as follows:
I. Kshs. 92,400/= compensation.
I. Kshs.30,800/= for Notice Pay.
III. Kshs. 15,400/= leave pay.
IV. Kshs. 160,000/= Agreed Compensation in terms of CBA.
V. Kshs. 61, 000/= overtime.
Total award Kshs.359,200/=.
VI. Interest at court rates from date of filing suit till payment in full in respect of all items except the equivalent of three (3) months’ salary, compensation for unlawful termination in respect of which interest to accrue from date of judgment.
VII. Costs to follow the outcome.
VIII. Respondent to provide the Claimant with certificate of service within 30 days of judgment.
Dated and Delivered at Nairobi this 17th day of May 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE