[2016] KEELRC 1531 (KLR)
The court found that the claimant was employed as an ungraded artisan and was terminated after approximately 10 months of service without notice or a valid reason, contrary to section 37 of the Employment Act. The court accepted the claimant's evidence of underpayment, as the statutory minimum wage for an ungraded...
Source-derived case information.
- Citation
- [2016] KEELRC 1531 (KLR)
- Parties
- Claimant: James Mbalika Kyuvi; Respondent: Mahesh Shah; Respondent: Relcon Power Systems Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1902 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed.
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Underpayment of Wages, Notice Pay, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mbalika Kyuvi
Claimant
Mahesh Shah
Respondent
Relcon Power Systems Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was wrongful and unlawful.
- 2 Whether the claimant was entitled to notice or compensation in lieu of notice.
- 3 Whether the claimant was underpaid during his employment period.
Ratio Decidendi
The court found that the claimant was employed as an ungraded artisan and was terminated after approximately 10 months of service without notice or a valid reason, contrary to section 37 of the Employment Act. The court accepted the claimant's evidence of underpayment, as the statutory minimum wage for an ungraded artisan in 2013 was Kshs. 634.85 per day, while the claimant was paid Kshs. 450 per day. The respondent failed to appear or defend the claim, and the court awarded the claimant one month's pay in lieu of notice, underpayment for 10 months, and three months' salary as compensation for unfair dismissal, plus costs.
Court Disposition
Claim allowed.
Orders
- The claimant is awarded one month's pay in lieu of notice: Kshs. 19,050.00.
- The claimant is awarded underpayment for 10 months: Kshs. 55,500.00.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1902 OF 2013
JAMES MBALIKA KYUVI…..…………………………………CLAIMANT
VERSUS
MAHESH SHAH …………………....…………………….1ST RESPONDENT
RELCON POWER SYSTEMS LTD…………..………….2ND RESPONDENT
JUDGMENT
1. The claimant chose to adopt his memorandum of claim as filed and left the Court to decide the dispute.
2. The respondent though served never filed any appearance or defence.
3. The claimant avers that he was employed by the respondent as an ungraded artisan from 22nd June, 2012 until 2nd October, 2013 at a daily wage of 450/=. He states that his services were terminated without notice and or payment of his terminal dues. He further complained that no reason was given for the termination of his services. The claimant therefore prayed that the Court finds that the termination of his services was wrongful and unlawful and order the respondent to compensate him.
4. By the time the respondent allegedly terminated the claimant’s services, he had worked for approximately 10 months. By virtue of section 37 of the Employment Act, his services could only be terminated as a regular worker by giving him one month’s notice and that the respondent had to assign a reason for terminating his services.
5. Regarding leave, the claimant had not qualified for leave since he had only worked for approximately 10 months.
6. The claimant attached a weekly labour card in one of which his daily rate was stated as Kshs.450 as averred in his memorandum of claim. The wages order for 2013 attached as part of the claimants documents in support of the claim placed daily wage at Kshs.634. 85 for an ungraded artisan which the claimant claimed he was. This therefore meant the claimant was underpaid by approximately Kshs.185/= per for the period he worked for the respondent.
7. The Court therefore awards the claimant as follows:-
Kshs.
a. One month’s pay in lieu of notice……………………19,050. 00
b. Underpayment for 10 months
(19,050 – 13,500 x 10)……………………55,500. 00
c. 3 months salary as compensation for unfair dismissal………………57,150. 00
131,700. 00
d. Costs
8. It is so ordered.
Dated at Nairobi this 26th day of February 2016
Abuodha J. N.
Judge
Delivered this 18th day of March 2016
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge