[2021] KEELRC 1950 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAKURU

CAUSE NO. 140 OF 2016

ISAIAH GATHOGO KAMAU....................................CLAIMANT

VERSUS

THE BOARD OF MANAGEMENT

ST ANTHONY SCHOOLS..............................1ST RESPONDENT

CATHOLIC DIOCESE OF NAKURU.......... 2ND RESPONDENT

JUDGMENT

1. The Claimant herein filed a Memorandum of Claim dated 14th April, 2016 on 21st April, 2016 through the firm of Konosi and company advocates claiming wrongfully, unlawfully and unfair terminated from the Respondent’s employment.

2. Further, he claims that the Respondents herein have failed, neglected and/or refused to pay him his December salary, house allowance for December, 2015, underpayment of salary paid from January 2014 to December 2015, unpaid medical allowance, overtime pay and compensatory damages.

3. He states that he was employed by the 1st Respondent on or about January, 2014 as a driver earning a basic salary of Kshs. 6,000/-per month which was later revised to Kshs 6,600/- per month in January, 2015.

4. The Claimant avers that he worked continuously with due diligence and to the satisfaction of the Respondent herein until December, 2015 when his services were unfairly and unlawfully terminated. He further avers that prior to his termination he was not issued any show cause letter requiring him to answer to any charges.

5. The Claimant contends that in dismissing his services, the Respondent breached various mandatory provisions of the Employment Act and the Constitution.

6. In his Memorandum of Claim, the Claimant prays for the following: -

a) Kshs. 17,090 being unpaid salary for December 2015.

b) Kshs. 219, 183. 10 being salary underpayments.

c) Kshs. 8,831. 03 being unpaid house allowance.

d) Kshs. 1,500/- being unpaid medical allowance for the month of December, 2015.

e) Kshs. 457,920/- being unpaid overtime pay.

f) Kshs. 205,086/- being compensation at the rate of 12 months’ gross salary, in terms of section 49(1)(c) of the Employment Act, 2007.

g) Cost of suit.

h) Interest in (a-g) above.

i) A certificate of service under section 51 of the Employment Act.

j) Any other further compensation as this Honourable Court may deem fir and just in the circumstances.

7. The Claimant urged the Court to allow his claim as drawn.

8. The Respondents in its Memorandum of Reply dated 14th October, 2016 and filed in Court on 21st October, 2016, by the firm of Rodi Orege and company Advocates, admitted having employed the Claimant as a driver on probation basis on 2nd January 2014 and confirmed the employment on 4th May, 2014. It however, denied that the Claimant services were terminated unfairly and stated that the claimant absconded work on 5th January, 2016 and never reported to work to date.

9. The Respondent further avers that the Claimant’s termination was justified, lawful and was as a result of gross misconduct. It was stated that the Claimant’s services were terminated on 12th January, 2016 when the respondent issue the claimant with a show cause letter and that he (the Claimant) had been served with warning letter dated 22nd September, 2015 with regard to his conduct while under the Respondents’ employment.

10. The Respondents contend that salaries for all employees including the claimant herein delayed due to a technical hitch and stated that they issued the claimant with his cheque on 5th January, 2016 who declined to accept the same.

11. It was further stated that the claimant herein reported to work at 6:00 am every morning till 6:30 pm in the evening when the vehicle was parked. They however indicated that the claimant enjoyed several hours of rest in between working hours.

Hearing

12. The Claimant gave his evidence on 26th January, 2021 which evidence he reiterated the averments made in his Memorandum of Claim and adopted his witness statement dated 14th April, 2016 as his evidence in chief together with documents all filed on 21st April, 2016.

13. CW1 testified that he did not received the cheque of his December salary as alleged by the respondent. Further that he had never received any information of any wrong doing on his part prior to the termination.

14. He further testified that in December 2015 his salary delayed than usual and on inquiring from the school on the reason for delay he was informed that all other employees had been paid and his salary was withheld by the school for allegedly going to work late. He further testified that the head teacher informed him verbally that he would never work in that school.

15. On cross examination, the claimant testified that he was employed as a driver by the 1st respondent on 2nd January 2014 on probation basis and the said contract was confirmed on 4th May, 2014. He testified that his main role was to ferry student pupil and that his first trip in the morning commenced at 5:00am till 6:30 am. The second trip would begin at 7:15 am. He informed this court that he would proceed for breakfast break at around 9:00 am and later be engaged in menial work like cutting grass and cleaning the dining hall after lunch. He further indicated that the evening trip would commence at 3:30 pm and then the vehicle would be parked anytime between 7:00pm and 9:00 pm depending on the day.

16. He testified that he never took the holidays off but that they worked during holidays for half day from 9:00 am to 12:00 noon. He stated that he was never issued with a warning letter save for one time when students were left in the bus and the head teacher forced him to sign a warning letter.

17. He indicated that the reason for leaving the 1st respondent employ was the fact that his salary was withheld and he could not work without remuneration as such he was constructively dismissed.

18. The Respondent called one witness, RW1 (Sister stella Mbithe), who indicated that she was the head teacher of the 1st respondent from 2012 to 2018. She adopted her witness statement and documents filed on 21st October 2016. She testified and confirmed that the Claimant was employed on contractual basis by the Respondent in the year 2009 as a cook and later taken up as a driver on 4th May,2014 after completing a driving course. She further testified that during the subsistence of his employment the Claimant failed to carry out his duties diligently and to the Respondent’s satisfaction.

19. RW 1 averred that the Claimant was still a cook from January, 2014 to May 2014 but that in the evening the claimant could go with the driver and familiarize himself with the routes. She testified that all employees did not receive their December 2015 salary due to a technical hitch and were all paid in January 2016. She testified that they did not intend to dismiss the claimant.

20. On cross examination with regard to the letter of appointment dated 2nd January, 2014, appointing the claimant to the position of a driver, the Respondent states that the said appointment was on probation and the confirmation was done in May 2014.

21. On further cross-examination RW1 stated that the claimant worked in the month of December, and was entitled to be paid his December salary.

Submissions

22. The Claimant submitted that he was constructively terminated from employment by the fact that the respondent withheld his salary for the month of December. He cited the case of Coca cola east and central Africa limited –versus- maria kagai ligaga[2015] which defined constructive dismissal and held that;

authoritative meaning of constructive dismissal was articulated by Lord Denning MR in Western Excavating (ECC) Ltd. -v- Sharp [1978] ICR 222 or [1978] QB 761, as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once (emphasis ours).

23. He further cited the case of Kenneth Kimani Mburu & another –versus- Kibe Muigai Holdings Limited [2014] eklrwhere the court gave the basic ingredients in constructive dismissal and listed as follows;

a) The employer must be in breach of the contract of employment;

b) The breach must be fundamental as to be considered a repudiatory breach;

c) The employee must resign in response to that breach;

d) The employee must resign after the breach has taken place, otherwise the court may find the breach waived.

24. Counsel submitted that when the respondents failed to pay the claimant his salary for December 2015 without giving justification for such failure, it breached a fundamental term of the employment contract that made it extremely difficult for the claimant to continue working. He cited the case of Vincent Omollo Obuom –versus- Catholic diocese of Nakuru [2015] eklr where the court held that;

“Payment of wages as agreed and on due dates is one of the essential terms of an employment contract. Failing to pay agreed wages goes to the root of the contract of employment. The Respondent was in breach when it did not pay wages according to the agreed terms. The Respondent was also in breach in withholding wages in 2012. The Court consequently finds that the Respondent was in breach of an essential term of contract and therefore the Claimant was entitled to treat himself as having been discharged by the Respondent’s conduct.”

25. On the prayers sought the claimant submitted that he is entitled to his December salary as provided for under section 18 of the employment Act. Further that Article 41 of the constitution entails that every person should be accorded fair labour practices, fair remuneration for work done.

26. On the prayer for compensation for salary underpayment, it was submitted that section 26 of the employment Act and section 48 of the Labour Institution Act provides that the statutory minimum terms and conditions of employment are presumed in every employment Contract. It was submitted therefore that the Claimant was entitled to payment not less that the statutory minimum rates of pay as stipulated in the various Amendments to the regulation of wages (General) Order.

27. It was submitted that during his tenure at the respondent’s employment, between 2014 and 2015, the applicable laws were regulation of wages (General) Order 2013 that operated between 1st may 2013 to 1st May 2015 when regulation of wages (General) Order 2015 came to force to date. consequently, he submitted that the claimant ought to have been paid monthly salary of Kshs. 15,259. 35 exclusive of allowances instead of the basic salary he received of Kshs. 6,000/-.

28. On the house allowance he submitted that the claimant is entitled to reasonable housing as envisaged under section 31 of the Employment Act and in the alternative to 15 % of the basic minimum wage as stated under Rule 4 of the regulation of wages (General) Order.

29. On the issue of overtime worked, it was submitted that the law at section 27 of the employment Act impresses upon every employer to regulate the working hours of employees and ensure that they are entitled to at least one day to rest. Further that under Rule 5(2) of the labour Institution Act no. 12 of 2007 (subsidiary legislation) regulation of wages (General Order) indicates that the normal working week shall consists of not more than fifty two (52) hours of work spread over six days of the week. He cited the case of Katiezo Aligulah –versus- Eldomat Wholesale and supermarket ltd[2016] eklr where the court stated that the formula for calculating overtime has been expressly provide for under Rule 6 of the regulations of wages(General) Order.

30. It was submitted that the total number of overtime worked by the claimant was 120 hours per month and prayed that this Court compel the respondent to compensate him for all the overtime worked between January 2014 to December 2015.

31. On compensation for unfair termination, it was submitted that, the claimant was constructively dismissed by the respondent when the respondent withheld the claimant’s December salary which in effect exposed him to hardship in reporting to work. Further that the allegation by the respondent that the claimant was dismissed vide the letter of 12th January, 2016 is an afterthought because the claimant had already left the employment of the respondent on 4th January, 2016. The claimant therefore urged this court to declare his dismissal as unfair and compensate him 12 months’ salary.

32. Finally, the claimant urged this court to compel the respondent to issue him with certificate of service as provided for under section 51 of the employment Act and lastly award him costs of this cause together with interest.

Respondents’ submissions

33. It is submitted by the Respondents that they did not pay the claimant his December salary and alleged a technical hitch occurred in the school and salaries for all employees delayed till January 2016. Further that the claimant’s cheque is available for collection in their offices.

34. On the claim for underpayment, the Respondent submitted that the claimant received a gross salary of Kshs. 10,700/- per month and has never complaint during his tenure in the employ of the respondent, of the underpayment. The claimant contends that the claimant’s claim of underpayment is an afterthought triggered by the fact that he no longer works for the respondents.

35. On the issue of unpaid house allowance, the respondent submitted that it paid the claimant a consolidated pay inclusive of house allowance as evidence by the pay slips produced by the claimant and urged this Court to dismiss this claim. He reinforced this position by citing the case of Joseph Sani Orina –versus- Hiprora business solutions (EA) Limited (2017) eklr where Abuodha J held;

“Gross salary as opposed to basic salary usually includes house allowance and other allowances paid by an employer and include basic pay. It is therefore correct that the claimant was paid a consolidated salary hence was never entitled to house allowance.”

36. On the claim for overtime, the respondent submitted that the claimant worked from 6: 00 am to 6: 30 pm with breaks between 7:25 am and 9: 30 am, then between 10:45am and 11: 45 am for tea break and lunch break between 1:00 pm to 3: 30 pm. He thus submitted that the hours strictly worked by the respondent and considering the nature of work is within the statutory limit and urged this Court to disallow this prayer.

37. The respondent maintained that the claimant was not dismissed unfairly as alleged but that the Claimant failed to report to work claiming delay of his December salary. Further that the delay has been sufficiently explained by DW1 who testified that the delay was caused by a technical hitch at the school that affected not only the claimant but also other employees. It was further submitted that it’s the claimant who refused to collect his cheque for December salary when the same was ready and available at the respondent office.

38. Finally, the respondent submitted that the claimant absconded work without notice forcing it to write the letter dated 12th January, 2016 requiring the claimant to report to work immediately failure to which he will be considered to have deserted employment. He thus urged this court to decline the prayer for unfair termination sought by the claimant.

39. I have examined the evidence of the parties herein. The claimant avers that he didn’t secure his December 2015 salary and to him this was contractual dismissal.

40. The respondents on their part aver that all the staff missed their December 2015 salary and the claimant was asked to collect his salary in January 2016 and he declined. The respondents however didn’t demonstrate that they paid the December 2015 salary to the claimant or neither did they exhibit any document indicating they asked the claimant to pick his pay and he declined.

41. The claimant also indicated that he never received any letters indicating that he had absconded duty. He avers that he asked for his salary and was told he won’t be paid.

42. From the evidence of both the claimant and respondent, the claimant was not paid his December 2015 salary. The Respondent Witness 1 indicated that they had promised to pay him but there is still no indication that the claimant was then paid.

43. This in my view falls in the armpit of being contractually dismissed as per the cited authorities.

44. I therefore find for the claimant and allow the claim as prayed in the following terms;

1. The claimant was unlawfully and unjustly terminated by the respondent contractually.

2. The claimant be paid 1 month salary in lieu of notice 17,090/=

3. The claimant be paid his unpaid December 2015 salary 17,090/=

4. 10 months salary as compensation for the unlawful contractual termination

= 10 x 17090 = 170,900/=

5. Underpayment of salary for claimant being as per Wages Order 2015 – Salary expected plus house allowance was 17,090 for 2015. The underpayment in lieu is thus 17090 – 10,500 = 6,590 x 7 Months in 2015 = 46,130/=

For 2014, the claimant was paid 9,259. 35 instead of 15,259. 35 as per the wages order for 203. He was thus underpaid

15,259. 35 – 9,259. 35 = 6,000. 35 x 12

= 72,004. 2

Total underpayment

= 118,134. 2

Total awarded = 223,214. 2

6. The respondent will issue claimant with a certificate of service.

7. The respondent will pay costs of this suit plus interest at court rates with effect from the date of this Judgment.

DATED AND DELIVERED IN OPEN COURT THIS 23RD DAY OF MARCH, 2021.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Ekesa holding brief for Konosi for claimant – present

Mongare holding brief for Kabalika for respondent - present