[2021] KEELRC 1035 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO 363 OF 2017

JOHNSON OTSIENO OGOLA.................................................................CLAIMANT

VERSUS

HATARI SECURITY GUARDS LTD....................................................RESPONDENT

JUDGMENT

1. This claim arises from an alleged termination of a contract of employment between the Respondent and the Claimant. It is premised on the Memorandum of Claim filed on 20th February 2017. The Respondent entered appearance in the cause but failed to file a Statement of Reply to the claim. On the trial date, the Respondent’s counsel did not attend court despite having been served with a Hearing Notice. Consequently, the cause proceeded as undefended.

2. From the Memorandum of Claim filed, the Claimant asserts that he was employed by the Respondent on 1st October 2014 as a night security guard. That he was assigned to work at Mapara Homesteads along Desai Road.

3. The Claimant further asserts that on 18th September 2016 he requested to be shown lavatories which he was to use while at work. This according to him seems to have been received badly by the Respondent’s client. The Claimant asserts that immediately after this request, he was summoned to a meeting by the Respondent’s management whereat he was accused of being rude to the Respondent’s clients and reporting to work while drunk. Consequently, he was terminated.

4. The Claimant asserts that the termination of his contract of service was unfair and in contravention of the Employment Act and the Constitution of Kenya 2010. He asserts that he was not given reasons for his termination. And neither was due process followed before the decision to terminate his services with the Respondent was taken. It is his contention that no notice to terminate was issued to him prior to his termination and neither was a disciplinary hearing conducted.

5. The Claimant therefore claims damages for unlawful termination. He asserts that his monthly salary was Ksh. 9,000/=. According to him, this pay was below the statutory minimum for employees of his category. He therefore claims for compensation to cover the underpayments.

6. The Claimant further asserts that he never took leave and that he worked overtime and was never paid house allowance. He prays that the court compensates him for this. As well he prays for service pay.

7. During the trial, the Claimant indicated to court that he had filed a witness statement which he adopted as his evidence in chief. In addition, he indicated that he had filed a list of documents together with copies of documents he would want to rely on in support of his case. He produced the several documents as exhibits 1 to 4 as appears in the list of documents. In his brief oral testimony, the Claimant largely reiterated the contents of his pleadings and witness statement.

8. In their submissions, counsel for the Claimant have identified the following issues for determination:-

a. Whether the Claimant was accorded due process before his termination;

b. Whether the Claimant is entitled to the prayers sought in the claim;

9. I add the following issues:-

a. Whether the Claimant was an employee of the Respondent;

b. Whether there were substantive grounds to terminate the Claimant’s contract of service with the Respondent.

10. Beginning with the question of the Claimant’s employment to the Respondent, the Claimant’s testimony was that he got into employment with the Respondent on 1st October 2014. The Respondent did not file a response to controvert this evidence.

11. Importantly, the Claimant has produced a guard work ticket marked as exhibit 2. The ticket bears the name of the Respondent. Further, it indicates that the Claimant was engaged by the Respondent as employee number 12621. The work ticket also indicates that as at 1st September 2016 the Claimant was assigned by the Respondent to work as a guard at a workstation designated as Mapara Desai.

12. In essence, exhibit 2 corroborates the Claimant’s evidence that he was an employee of the Respondent as a guard. He worked under the directions of the Respondent in return for a wage. Besides, the Respondent in assigning the Claimant workstations, in essence controlled the Claimant’s execution of the task assigned to him by the Respondent. In the absence of contrary evidence to controvert the evidence as presented by the Claimant on the fact of employment and having regard to the evidence analyzed above, the court finds that the Claimant was indeed employed by the Respondent as a guard.

13. Regarding the question whether the Respondent had substantive grounds to terminate the Claimant’s contract of service, the evidence by the Claimant was that the Respondent accused him of coming to work while drunk. Further, it was asserted that the Claimant had been rude to the Respondent’s client.

14. The Claimant challenged the validity of these grounds. By virtue of section 45 of the Employment Act, the duty fell on the Respondent to justify the validity of these grounds. Regrettably, the Respondent did not discharge this burden as it neither filed a defense nor testified in the cause. Absent a justification of the validity of the grounds for termination by the Respondent, the court finds that there were no valid grounds to terminate the Claimant’s contract of service.

15. On the question whether due process was observed in the events leading to the decision to terminate the Claimant’s contract of service, it was indicated by the Claimant that he was not served with a notice to terminate the contract and neither was he notified of the charges facing him. He was not given any hearing. Again, this evidence was not controverted by the Respondent. The Employment Act (sections 35, 36 & 41 as read with sections 43 and 45) requires an employer to observe certain procedural strictures before terminating the services of an employee. These include: issuing of a notice to terminate or making payments in lieu of such notice; notifying an employee of the complaint against him/her in a language the employee understands; informing the employee of the right to offer a defense to the charges and call witnesses in this regard; and rendering a reasoned decision that takes into account the representations made by the employee.

16. There is nothing on record to demonstrate that the Respondent did any of the foregoing. As a consequence, the court finds that the Claimant was not accorded procedural fairness in the process leading to his termination.

17. Is the Claimant entitled to any remedy and if so which one? The Claimant has prayed for a raft of reliefs. These include:-

a. A declaration that his termination was unlawful.

b. A declaration that the Claimant is entitled to payment of terminal dues and compensatory damages.

c. An order that the Respondent pays the Claimant Ksh 542,350/= plus costs and interest.

The heads of damages are particularized in paragraphs 9 and 10 of the Statement of Claim. They include: salary in lieu of notice; payment in lieu of leave; house allowance; service pay; overtime pay and pay to compensate work done during public holidays; and compensation for underpayments.

18. Legal Notice No. I17 of 2015 that came into force on 1st May, 2015 introduced the 2015 Wage Order. Under this Order, the minimum wage for watchmen in Nairobi and its environs was Ksh.10, 954. 70 exclusive of house allowance. This notice came into force in May 2015 and replaced the Wage Order that was in force in 2014 introduced through Legal Notice No. 197 of 2013. This latter notice fixed minimum salary for watchmen in Nairobi and its environs at Ksh. 9,780. 95. These two notices are foundational in determining the minimum wage of the Claimant from the date of his engagement as they were in force during the time of his engagement with the Respondent.

19. Between 1st October 2014 and 1st May 2015 the Claimant was earning Ksh. 9000/= monthly when the minimum wage under the Wage Order then in force entitled him to Ksh. 9,780. 95 before adding house allowance on it. As a practice, house allowance is computed at 15% of the basic wage. This would work to Ksh. 1,467. 15. The Claimant’s consolidated minimum wage over this period ought to have been Ksh 11,248. 10. Consequently, the Claimant’s monthly salary deficit was Ksh. 11248. 10 – Ksh. 9,000= Ksh. 2,248. 10. Thus, the underpayment for the period between October 2014 and 1st May 2015 is Ksh. 2,248. 10 x 7 = Ksh. 15,736. 70.

20. Between 1st May 2015 and 19th September 2016 when the Claimant was terminated his monthly salary was Ksh. 9,000/=. However, the Wage Order in force provided for a minimum wage of Ksh. 10,954. 70 exclusive of house allowance. Fixed at 15% of the basic wage, house allowance for an employee earning Ksh. 10,954. 70 works out to Ksh. 1,643. 20. The consolidated monthly wage of the Claimant over this period ought to therefore have been Ksh. Ksh. 12,597. 90. Therefore the Claimant suffered monthly underpayment of Ksh. 3,597. 90. The approximate total underpayments over this period thus work to Ksh 3,597. 90 x 16 = Ksh. 57,566. 40. The total underpayments which cover house allowance thus are Ksh. 15,736. 70 + Ksh. 57,566. 40 = Ksh. 73,303. 10. Accordingly, the court enters for the Claimant for Ksh. 73,303. 10 to cover house allowance and underpayments for the duration of the employment contract.

21. On pay in lieu of notice, the court awards the Claimant Ksh. 12,597. 90 being equivalent to salary for one month.

22. There is no evidence that the Claimant proceeded on leave during the two years of service. He would be entitled to an amount equivalent to the leave period. This works to Ksh. 10,954. 70 for 2014-2015 and Ksh. 12,597. 90 for 2015-2016. This totals Ksh. 23,552. 60. The Claimant is awarded this amount as pay in lieu of leave.

23. In relation to service pay, the Claimant is entitled to 15 days for every year worked. This works to Ksh. 5,477. 35 for 2014-2015 and Ksh. 6,298. 95 for 2015-2016. The total is Ksh. 11,776. 30. The NSSF slip produced by the Claimant as exhibit 3 demonstrates that the Respondent did not remit NSSF contributions from October 2014 when the Claimant joined it as an employee. Although the record is for 2014 only, there is no evidence that this trend changed after 2014. The claimant is therefore entitled to claim the sum of Ksh. 11,776. 30 towards service pay. This amount is accordingly granted.

24. The Claimant has claimed for overtime pay and pay for holidays when he worked. However, there was no evidence tendered to demonstrate that the Claimant worked beyond the stipulated hours or that he worked during holidays. Accordingly, these claims are declined.

25. Section 49 of the Employment Act entitles the Claimant to damages for wrongful termination capped at gross pay for an aggregate 12 months. However, the court takes cognizance of the duty on the Claimant to mitigate his losses. The Claimant has not demonstrated that he tried but failed to get alternative employment immediately after his termination. The court will therefore award him an aggregate of 4 months’ salary under this head of damages totaling Ksh. 50,391. 60.

26. The foregoing awards attract interest at court rates from the date of the award till payment in full.

27. The Claimant is also awarded costs of the suit.

28. These awards are subject to the applicable statutory deductions as required under section 49 of the Employment Act.

29. Summary of the award:-

a. A declaration is issued that the Claimant’s contract of service was terminated unlawfully.

b. The Claimant is awarded damages for wrongful termination itemized as follows:-

i. Salary in lieu of notice Ksh.12,597. 90.

ii. House allowance and underpayments Ksh.73,303. 10.

iii. Service pay Ksh.11,776. 30.

iv. Pay in lieu of leave Ksh. 23,552. 60.

v. Compensation for wrongful termination equivalent to 4 months’ gross salary of Claimant: Ksh. 50,391. 60.

c. The Claimant is awarded interest on the sub items under b) above at court rates from the date of this award till payment in full.

d. The Claimant is awarded costs of the suit.

e. For the avoidance of doubt, this award is subject to the applicable statutory deductions.

DATED, SIGNED AND DELIVERED ON THE 10TH DAY OF SEPTEMBER 2021

B O M MANANI

JUDGE

In the presence of:

.................................................for the Claimant

..............................................for the Respondent

ORDER

In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.

B O M MANANI

JUDGE