[2016] KEELRC 1649 (KLR)
The court found that the Claimant was afforded an opportunity to make representations regarding the allegations against him in the presence of supervisors and other staff, satisfying the procedural requirements of section 41 of the Employment Act, 2007. The evidence established that the Claimant was caught in the...
Source-derived case information.
- Citation
- [2016] KEELRC 1649 (KLR)
- Parties
- Claimant: John Nyota Ndungu; Respondent: Petwa Construction Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 374 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; summary dismissal upheld as fair; limited monetary relief granted.
- Judges
- MSA Makhandia
- Legal Topics
- Summary Dismissal, Unfair Termination, Procedural Fairness, Entitlement to Wages, Accrued Leave, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nyota Ndungu
Claimant
Petwa Construction Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the summary dismissal of the Claimant was unfair under the Employment Act, 2007.
- 2 Whether the Claimant was afforded procedural fairness prior to dismissal.
- 3 What remedies, if any, the Claimant is entitled to upon dismissal.
Ratio Decidendi
The court found that the Claimant was afforded an opportunity to make representations regarding the allegations against him in the presence of supervisors and other staff, satisfying the procedural requirements of section 41 of the Employment Act, 2007. The evidence established that the Claimant was caught in the act of siphoning fuel, providing the Respondent with valid and fair reasons for summary dismissal under section 44 of the Employment Act. Consequently, the dismissal was both substantively and procedurally fair. The Claimant was not entitled to compensation for unfair termination or pay in lieu of notice. However, he was entitled to payment of earned wages for July 2013 and cash...
Court Disposition
Claim partly allowed; summary dismissal upheld as fair; limited monetary relief granted.
Orders
- Respondent to pay Claimant Kshs 13,038 for July 2013 wages.
- Respondent to pay Claimant Kshs 30,667 for accrued leave.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 374 OF 2014
JOHN NYOTA NDUNGU CLAIMANT
v
PETWA CONSTRUCTION COMPANY LIMITED RESPONDENT
JUDGMENT
The Claimant was employed by the Respondent in February 2012 as a Roller Operator. The relationship hit turbulence on 17 July 2013 when the Respondent dismissed the Claimant.
As a result, the Claimant commenced legal proceedings against the Respondent on 15 August 2014, alleging unfair termination of employment.
A Response was filed on 19 February 2015 and the Cause was heard on 24 February 2015 and 29 October 2015. The Respondent filed its submissions on 14 January 2016 while the Claimant’s submissions were filed on 19 February 2016.
The Court has considered the pleadings, evidence and submissions, and identified the issues for determination as, whether the dismissal of the Claimant was unfairandappropriate remedies.
Whether dismissal was unfair
The Claimant in testimony stated that he was arrested by the Police on 16 July 2013 and he was released the next day. When he reported to the work site he was given a dismissal letter by one Gabriel Kibicho and the reason for the dismissal was siphoning of fuel.
The Claimant stated that he was not given notice of termination, nor afforded an opportunity to be heard.
The Respondent’s witness on his part stated that he caught the Claimant with stolen fuel on 16 July 2013 along Gilgil/Nyahururu road. The Claimant had 2 jerry cans and a pipe and he caused the Claimant to be arrested.
The next day, the Claimant was released and he was afforded an opportunity to offer explanations in the presence of Paul Mwangi (supervisor), Paul Kingori and a Diana, but his explanations were found inadequate and he was dismissed.
The Court is satisfied that the Claimant was granted an opportunity to make representations before his dismissal, and therefore the Respondent met the statutory requirements of section 41 of the Employment Act, 2007.
The Court is also satisfied that the Claimant was caught red handed and therefore the Respondent had valid and fair reasons to dismiss him and that the same have been proved.
Appropriate remedies
Wages for July 2013
The Claimant is entitled to the earned wages which he quantified as Kshs. 13,038/-.
1 month pay in lieu of notice
Because of the conclusion reached on the fairness of the dismissal, notice pay becomes legally untenable.
Annual leave
The Claimant sought Kshs 30,667/- on account of leave. His testimony that he had 40 days accrued leave was not challenged. He is entitled to cash in lieu of the leave days.
Compensation
Compensation is a primary and discretionary remedy where the Court makes a finding of unfair termination of employment. The Court has found the dismissal was for valid and fair reasons and compensation is not available.
Certificate of Service
This is a statutory right and the Respondent should issue one to the Claimant within 7 days.
Conclusion and Orders
The Court finds and holds that the summary dismissal of the Claimant was fair.
The Court awards and orders the Respondent
July Wages Kshs 13,038/-
Accrued leave Kshs 30,667/-
TOTAL Kshs. 43,705/-
Each party to bear own costs.
Delivered, dated and signed in Nakuru on this 26th day of February 2016.
Radido Stephen
Judge
Appearances
For Claimant Mr. Muthanwa instructed by Muthanwa & Co. Advocates
For Respondent Mr. Biko instructed by Muchemi & Co. Advocates
Court Assistant Nixon/Kosgei