[2020] KEELRC 1883 (KLR)
The court found that the claimant had obtained permission to be absent from work due to illness and had provided supporting medical evidence. The respondent failed to rebut this evidence or to call the relevant manager as a witness. There was no proof of desertion or misconduct by the claimant. The respondent did...
Source-derived case information.
- Citation
- [2020] KEELRC 1883 (KLR)
- Parties
- Claimant: Johana Ngeno Kimtai; Respondent: DPL Festive Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1211 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant; unfair termination established.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Constructive Dismissal, Compensation for Termination, Notice Pay, Salary Entitlement, Security Deposit Refund
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johana Ngeno Kimtai
Claimant
DPL Festive Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was constructively dismissed or unfairly terminated from employment.
- 2 Whether the respondent complied with the statutory requirements for termination under the Employment Act, 2007.
- 3 Whether the claimant is entitled to compensation, notice pay, salary, and refund of security deposit.
Ratio Decidendi
The court found that the claimant had obtained permission to be absent from work due to illness and had provided supporting medical evidence. The respondent failed to rebut this evidence or to call the relevant manager as a witness. There was no proof of desertion or misconduct by the claimant. The respondent did not comply with statutory requirements for fair termination, including notice and a hearing. The court concluded that the termination was unfair and not a case of constructive dismissal. The claimant was therefore entitled to compensation equivalent to three months' salary, pay in lieu of notice, salary for January 2015, and refund of the security deposit. Claims for leave and...
Court Disposition
Judgment for the claimant; unfair termination established.
Orders
- Respondent to pay the claimant KES 68,733 as compensation for unfair termination.
- Respondent to pay the claimant KES 17,739 as pay in lieu of notice.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1211 OF 2015
JOHANA NGENO KIMTAI CLAIMANT
V
DPL FESTIVE LIMITED RESPONDENT
JUDGMENT
1. This Cause was heard on 29 October 2019. Johana Ngeno Kimtai (Claimant) testified and was cross-examined. DPL Festive Ltd (Respondent) opted not to call any witness.
2. The Claimant filed his submissions on 14 November 2019 while the Respondent filed its submissions on 26 November 2019.
3. The Court has considered the pleadings, evidence on record and the submissions and condensed the Issues for Determination as examined hereunder.
Constructive dismissal
4. The Claimant was employed by the Respondent on 5 August 2013 as a driver. He contended that he was constructively dismissed on or around 16 January 2015.
5. The Respondent’s pleaded case was that the Claimant failed to report to work from 12 January 2015 without permission or lawful cause and that he was therefore dismissed through a letter dated 30 January 2015 on account of desertion.
6. In asserting constructive dismissal, the Claimant testified that around 10 January 2015 he fell ill and contacted one of the Respondent’s Managers called Balala for permission to go seek medical attention and that the permission was granted.
7. According to the Claimant, when he resumed duty on 14 January 2015, the said Balala directed him to present medical evidence that he was ill, but that when he presented the medical note on 16 January 2015, he was issued with a final warning letter dated 13 January 2015 alleging absenteeism.
8. The Claimant further testified that he sought to be deployed to the day shift, but permission was declined and he was not assigned any duties for over a month and that this amounted to constructive dismissal.
9. The Claimant testified and was interrogated. His testimony that he got permission from the Transport Manager Balala on account of ill-health was not rebutted as the said Balala was not called to testify. The failure to call him to testify was also not explained.
10. The Claimant also produced medical evidence that he was indisposed at the material time.
11 The Respondent did not present any evidence to show that the Claimant deserted work or failed to attend work without lawful cause or permission.
12. In the circumstances, the Court finds the narration by the Claimant as more probable. He had permission to be away and even if there was no permission, there was lawful cause to be away from work as evidenced by the medical evidence produced.
13. Failure to report to work is misconduct warranting summary dismissal but after a hearing as contemplated by section 41(2) of the Employment Act, 2007. The Respondent did not even suggest that it attempted to contact the Claimant to explain why he was not reporting to work if indeed he had no permission or lawful cause to be away from work.
14. Since the Respondent did not lead any other evidence contrary to that of the Claimant or prove that the Claimant deserted, the Court finds that this was a case of unfair termination of employment without compliance with the requirements of sections 35(1)(c), 41, 43 and 45 of the Employment Act, 2007 and not one of constructive dismissal.
Compensation
15. The Claimant served for about 3 years, and in light of the length of service, the Court is of the view that the equivalent of 3 months’ salary as compensation would be fair (gross pay according to payslip produced by the Claimant was Kshs 22,911/-).
Pay in lieu of notice
16. Since there was no written notice, the Court agrees with the Claimant that he is entitled to a salary in lieu of notice (Claimant’s basic pay was Kshs 17,739/-).
Salary for January 2015
17. The Claimant was dismissed through a letter dated 30 January 2015. He is entitled as of right to earned wages up to that date which he computed as Kshs 22,911/-.
Salary for February 2015
18. The Claimants contract was effectively determined from 30 January 2015. He cannot legally lay claim to wages after that date.
Leave
19. The Claimant sought Kshs 34,366/- on account of untaken/accrued leave.
20. The Respondent filed the Claimant’s leave records.
21. The leave for 2014 was commuted and paid to the Claimant on 31 December 2014. He cannot validly claim for leave for 2015 as he served for only 1 month.
Security deposit
22. The records produced by the Respondent shows that the Claimant had paid a security deposit of Kshs 12,000/- by end of 2014.
23. The Claimant sought a refund of the deposit, and the Court finds that is what he is entitled to is a refund of Kshs 12,000/- and not Kshs 28,500/- as he was on a fixed-term contract of 1 year.
Conclusion and Orders
24. The Court finds and declares that the Respondent unfairly terminated the Claimant’s employment and awards him
(a) Compensation Kshs 68,733/-
(b) Pay in lieu of notice Kshs 17,739/-
(c) Salary for January 2015 Kshs 22,911/-
(d) Security deposit Kshs 12,000/-
TOTAL Kshs 121,383/-
25. Claimant to have costs.
Delivered, dated and signed in Nairobi on this 17th day of January 2020.
Radido Stephen
Judge
Appearances
For Claimant Mr. Mulaku instructed by Namada & Co. Advocates
For Respondent Mr. Kilonzo, Legal Officer, Federation of Kenya Employers
Court Assistant Fred