[2016] KEELRC 1669 (KLR)
The court found that the respondent had reasonably demonstrated that the claimant's services were terminated on account of redundancy, and the claimant failed to show that the dismissal was wrongful or the redundancy unprocedural. The court held that, under Section 40 of the Employment Act, the claimant was entitled...
Source-derived case information.
- Citation
- [2016] KEELRC 1669 (KLR)
- Parties
- Claimant: John Ndakaa Nandwa; Respondent: Ancarta Construction Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1519 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed. Judgment for the claimant for Kshs. 23,776 less amounts already paid, plus costs.
- Legal Topics
- Unfair Termination, Redundancy Procedure, Terminal Benefits, Severance Pay
- 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
John Ndakaa Nandwa
Claimant
Ancarta Construction Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair or wrongful.
- 2 Whether the respondent followed the correct procedure for redundancy under the Employment Act.
- 3 Whether the claimant is entitled to terminal benefits and severance pay.
Ratio Decidendi
The court found that the respondent had reasonably demonstrated that the claimant's services were terminated on account of redundancy, and the claimant failed to show that the dismissal was wrongful or the redundancy unprocedural. The court held that, under Section 40 of the Employment Act, the claimant was entitled to one month's salary in lieu of notice, accrued leave, and severance pay for the period worked, less any amounts already paid. The court calculated the total entitlement and ordered payment of the outstanding balance to the claimant, together with costs of the suit.
Court Disposition
Claim partly allowed. Judgment for the claimant for Kshs. 23,776 less amounts already paid, plus costs.
Orders
- The respondent shall pay the claimant Kshs. 23,776 less Kshs. 10,424 already paid.
- The claimant is awarded costs of the suit.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1519 OF 2013
JOHN NDAKAA NANDWA.………….……………………………CLAIMANT
VERSUS
ANCARTA CONSTRUCTION COMPANY LIMITED…......….RESPONDENT
JUDGMENT
1. The claimant in this suit avers that he was employed by the respondent in January, 2012 and worked until 27th July, 2013 when according to him, his services were terminated without justification at all. On termination he claims he was not given any charges against him nor given an opportunity to defend himself. He further claimed he was not paid terminal benefits upon termination.
2. The respondent on the other hand admits the claimant was its employee but his services were terminated when he was lawfully laid off in July 2013 when the respondent completed its ongoing construction projects within Nairobi. According to the respondent, the claimant’s services were terminated in accordance with section 40 (i) (c), (e), (f) and (g) of the Employment Act. Upon declaration of redundancy the claimant was paid Kshs.10,424/= in settlement of his dues.
3. At the hearing of the claim the claimant testified that he was employed by the respondent as a mechanic at a daily wage of Kshs.500/= but payable weekly. He was enrolled to NSSF and NHIF. It was further his testimony that in the course of his duties he got injured in the hand and used his own money which he was told would be refunded upon submitting receipts. When he returned to work after treatment he claimed he was refused entry by the security guard.
4. In cross-examination he stated that he was employed in February, 2012 initially as a casual and later became a mechanic. He stated that he paid Kshs.3,424 on account of his medical expenses but had no receipts to show this in Court.
5. The respondent on the other hand gave evidence through Tabu Nyegenje who stated that he worked for the respondent as a foreman and that he arranged work plans and recruited casuals. It was his evidence that the respondent told him he had knowledge of mechanics. According to him the claimant joined the respondent around June, 2013 and worked until June, 2013 when he and others were laid off when the project became complete. He produced payment sheets to show how the workers including the claimant were paid (D-ex 1). He further produced D-ex 2 which showed leave payment. According to him, leave and service were paid at the end of the contract.
6. The onus of proving reasons for termination of employment is on the employer. The standard proof is on a balance of probabilities. On the other hand the onus of showing that the termination was unfair or dismissal wrongful is on the employee. Whereas the respondent has reasonably showed that the claimant’s services were terminated on account of redundancy, the claimant has merely alleged he was wrongfully dismissed without showing in what way the dismissal was wrongful or termination unfair. The claimant has not even alleged that the redundancy was unprocedural. In any event even if a declaration of redundancy is found to be unprocedural the Court can only so declare so but not stop redundancy.
7. Section 40 of the Employment Act provides that in a declaration of redundancy an employee must be paid any leave due, not less than one month’s notice or wages in lieu and severance pay at the rate of not less than fifteen days pay for each complete year of service.
8. Differences in dates aside, assuming the claimant was employed in January, 2012 as he averred, by the time of his services were terminated in July 2013 he had worked for approximately one year and seven months. Under provisions of sections 40 he would be entitled to one month’s salary in lieu of notice, thirty three days of leave and severance pay for the year 2012. That is to say:-
Kshs.
One month’s pay in lieu of notice
(450 per day x 28 days)………………………12,600. 00
33 days of leave with pay………………….14,850. 00
Severance pay for 2012 @ 15 days pay….6,750. 00
Less money already paid………………….10,424. 00
23,776. 00
9. The claimant will have costs of the suit.
10. It is so ordered.
Dated at Nairobi this 5th day of February 2016
Abuodha J. N.
Judge
Delivered this 5th day of February 2016
In the presence of:-
……………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.
Abuodha J. N.
Judge