[2015] KEELRC 336 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI

CAUSE NO 246 OF 2014

(Before Hon. Lady Justice Hellen S. Wasilwa on 29th October, 2015)

JOHN MUTURI WANJIKU.......................................CLAIMANT

VERSUS

SAMANI CONSTRUCTION LIMITED...................RESPONDENT

JUDGMENT OF THE COURT

The Claimant herein John Muturi Wanjiru filed his Memorandum of Claim on the 21st of February 2014 through the firm of Kamotho Njomo & Company Advocates.

He sought the following Prayers:

A declaration that Claimant’s dismissal from theRespondent’s employment was unprocedural, unfair,unlawful and unconstitutional.

An Order for compensation for violation of theClaimant’s Constitutional rights.

Certificate of Service.

A fine of Kshs. 100,000. 00 against the Respondent forfailure to comply with mandatory provision of Section 51 (3) of the Employment Act 2007.

Service pay for the years worked.

One (1) month’s salary in lieu of notice of termination inthe sum of Kshs.21,000. 00

Punitive and aggravated damages.

Compensation equivalent to twelve months wages in thesum of Kshs. 252,000. 00

Unpaid housing allowance.

Interest accruing on (c), (d), and (f) above

Costs of the suit.

Facts of the Case

The Claimant through his Memorandum of Claim and oral evidence adduced before the Court stated that he was employed by the Respondent Samani Construction Limited around June 2010 as a casual employee earning a salary of Kshs. 350. 00 per day. He was later promoted to machine operator, a position he held until April of 2012 when he was terminated. At termination, his salary had increased to Kshs. 450 a day.

The Claimant was later recalled by the Respondent and resumed work as a machine operator in March of 2013. After two months, he was reassigned to the position of lorry driver and his salary increased to Kshs. 700 a day which position he held until 11th of October 2013 when he was orally informed that he had been terminated.

The Claimant contends that the termination was not for valid reasons, he had not committed any misconduct, was not based on any lawful grounds and was an unfair labour practice.

The Claimant further alleges that the dismissal was done without regard to due process and was in contravention of the laid down procedure for terminating employment as provided for in the Employment Act 2007. He states that his dismissal was malicious, in bad faith and was done with the sole purpose of humiliating the Claimant and for these reasons, he is entitled to aggravated and punitive damages.

The Claimant states that during his employment the Respondent deducted Kshs. 200. 00 as NSSF dues from his salary but failed to remit the sums to the relevant authority. Further, he was not issued with a Certificate of Service and as a consequence has suffered loss and damage in trying to obtain alternative source of employment. The Claimant further alleges that he was not provided with housing or pay in the alternative as required by the law, stating that he is entitled to the same at the rate of 15% of his monthly salary.

On allegations that he used the car for his own personal and private purposes, the Claimant denied the same and explained to the Court that he was on duty with instructions from his supervisor.

The Respondent opposed the Memorandum of Claim via a statement of Response filed on the 8th of April 2014.

The Respondent called two witnesses who both confirmed that the Claimant was an employee of the Respondent. The first witness was Mr. Bonface Kamau a driver of the Respondent who testified that on the 5th of October 2013, he requested the Claimant to drive his motor vehicle from the car wash to the assigned parking lot which was done as he found the car at the parking lot on that Monday.

The second witness was a Mr. Richard Masese a Human Resource Manager, who testified that the Claimant had been employed by the Respondent as a JCB machine driver on the 1st of April 2013 and later on as a driver when the JCB work was over. He informed the court that the Claimant’s duties together with those of other drivers would be assigned by the workshop manager to deliver construction materials to various sites and a store keeper would then receive the materials. He testified that on the 5th of October 2013, he saw the Claimant dropping a car assigned to a fellow driver Mr. Boniface Mwangi at the parking lot. He investigated the matter and called both the Claimant and Mr. Mwangi for questioning but before he could conclude his investigations, the Claimant absconded duty without giving any reasons and without permission.

Mr. Masese produced an attendance sheet which showed that the Claimant was absent on Monday 7th October 2013, but worked on Tuesday 8th and Wednesday 9th of October 2013, and absconded never to return as from 10th October 2013. No reasons were given as to why he failed to work on Monday 7th of October 2013. He further testified that the next time he heard from the Claimant was when he received summons to appear in court.

The Respondent testified that indeed NSSF employee dues were remitted and that what the Claimant produced was provisional member statement that clearly showed that those dues were being remitted by the Respondent from the month of April 2013. Moreover, the Respondent submitted that the Motor Vehicle assigned to the Claimant had been fitted with a car track device whose records revealed that on several occasions specifically Saturday afternoons the Claimant used the vehicle for private purposes. He named one occasion where the Claimant used the vehicle to transport ballast from Machakos covering more than 140 Km before driving back to the parking yard at around 7. 00 pm a fact that was admitted by both the Claimant and his turn boy. Warning letters dated 12th of September 2013 which had been issued were produced by the Respondent and the Claimant confirmed receipt of the same in court.

The Respondent further submitted that the Claimant had on one occasion lost the vehicle’s keys occasioning loss of business to the Respondent as the vehicle could not move, and that the Claimant wrote to the Respondent a letter where he agreed to pay for another ignition starter whose purchase invoice they produced in court.

The Respondent submits that the Claimant absconded from duty on the 10th of October 2013, less than a week after the Respondent commenced investigations. They further stated that the essential ingredients of an employer – employee relationship was trust and that the Respondent did not at any one time verbally dismiss the employee.

As to the issue of service pay, the Respondent submitted that Section 35(5) provides that an employee whose employment is terminated is entitled to service pay but there were exceptions to the said provisions which were where an employee was a member of:

A registered pension or provident fund scheme under the Retirement Benefits Acts;

A gratuity or service pay scheme established under a collective bargaining agreement;

Any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and

The National Social Security Fund.

The Respondent submitted that the Claimant was a registered member of the NSSF scheme as proved by the payslip produced in court and therefore is not entitled to the service pay.

On Notice pay, the Respondent contends that there was nothing to show that the Respondent terminated the Claimant’s Contract but rather he absconded duties and was therefore not entitled to the payment in lieu of notice.

On house allowance, the Respondent submitted that during examination in chief, the Claimant testified that he was paid house allowance.

As to compensation equivalent to twelve month’s salary the Respondent submits that Section 49(1) provides for remedies for wrongful termination and wrongful dismissal which they have demonstrated did not occur in this instance as the Claimant absconded from work.

I have considered the evidence and submissions of both parties. Issues for consideration are as follows:

Whether Claimant was terminated or he absconded duty.

If terminated, whether there were valid reasons for thesame and if due process was followed.

What remedies to grant in the circumstances.

On the 1st issue, the Respondents allege that Claimant absconded duty whereas Claimant asserts that he was verbally terminated. It is apparent that Claimant was subjected to casual employment for a period of 3 years and there was no written contract. This contravenes the provisions of Section 9 (1) of the Employment Act which mandates a contract for a period of 3 and above to be in writing.

In the premise, when there is contention on terms of contract, the onus of proving otherwise rests on the Respondent, the employer. In the current case, the contention on oral dismissal falls in place as the Respondent was not in the habit of communicating with the Claimant in writing. There is nowhere that the Respondent tried to reach out to Claimant if indeed he absconded and the labour officer was also never notified of this position.

The Claimant served Respondent with a demand notice dated 14/10/2013 and this too was never acknowledged. The documents of the alleged investigations carried out by Respondent were also never produced as exhibit. This court finds that the Claimant never absconded duty but was orally dismissed as he has submitted.

The dismissal was carried out without following due procedure as provided for under Section 41 of the Employment Act and without any valid reasons. This Court therefore finds the termination unfair and unjustified in terms of Section 45 of Employment Act.

I therefore find for the Claimant and I award him as follows:

1 months salary in lieu of notice = 21,000/=

Unpaid October salary = 2,535/=

12 months salary as compensation for unlawful termination = 252,000=

Total 280,535/= plus costs

The other claims on service pay are not payable by virtue of Section 35 of Employment Act. The other claims have not been established

Read in open Court this 29th day of October, 2015.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Claimant – Absent

Muriithi for Respondent – Present