[2021] KEELRC 1031 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT NAIROBI

CAUSE NUMBER 1365 OF 2015

BETWEEN

JOSEPH ATIEL MUSUMBA ........................................ CLAIMANT

VERSUS

LATHYFLORA KENYA LIMITED ........................... RESPONDENT

Rika J

Court Assistant: Emmanuel Kiprono

_____________________________

Namada & Company Advocates for the Claimant

Githinji & Koki Advocates for the Respondent

____________________________________

JUDGMENT

1. The Claimant filed his Statement of Claim on 6th August 2015. He states that he was employed by the Respondent as a General Labourer, on 21st December 2001. He earned a monthly salary of Kshs. 12,857.

2. He sustained spinal injuries while on duty, on 17th December 2011. He was treated and resumed work. On 6th March 2015, the injuries recurred and the Claimant was hospitalized at Limuru Nursing Home for 3 days. He was treated on follow-up at the Hospital. Sometime in April 2015, he reported for duty and was informed by the Respondent, that his contract had been terminated.

3. He was not given a hearing, or reason for the decision. He had worked for more than 14 years without blemish. He was denied terminal benefits. He prays for Judgment against the Respondent as follows: -

a. Declaration that termination was unfair and unlawful.

b. Declaration that the Claimant is entitled to terminal benefits and compensation for unfair termination.

c. Notice of 1 month at Kshs. 12,857 and 12 months’ salary in compensation for unfair termination at Kshs. 154,284.

d. Costs and Interest.

4. The Respondent entered appearance on 24th May 2017. It is the Respondent’s position that the Claimant was employed by the Respondent, on or about the year 2000 as a General Labourer. He suffered injuries and was treated as pleaded. He was not summarily dismissed; he deserted. The Respondent always expected the Claimant would report back to work. He did not. The Respondent’s Human Resource Director tried to reach out to the Claimant, to enquire why he had not reported for duty. The Claimant did not respond. The Respondent prays the Court to dismiss the Claim with costs.

5. The Claimant gave evidence as did Respondent’s Human Resource Manager, John Mugo, on 5th March 2021. Parties confirmed filing and exchange of their Closing Submissions on 10th June 2021. Judgment was reserved for 14th October 2020, but is ready for delivery on the date indicated below, as notified to the Parties.

6. The Claimant adopted his Statements of Claim and Witness, and his Documents, in his evidence. He was employed on 21st December 2001 as a General Worker. He was involved in mixing of fertilizers. He slid and fell while carrying a bag of fertilizer. He broke his back. He was taken to hospital and treated. He resumed work, and was assigned alternative work of slashing bushes, but on 6th March 2015, he fell again and got injured. He was hospitalized at Limuru Hospital. He was transferred to St. Mary‘s Hospital Nairobi. On return to work, he was told that he absconded duty. The Respondent was always aware that the Claimant was injured, and hospitalized or under treatment.

7. Cross-examined, the Claimant told the Court that he was first injured in 2011. The Respondent paid for his hospitalization. He was not paid work injury compensation. Pay slip shows the Claimant earned a salary of Kshs. 12,000. The Respondent was aware about the Claimant’s second hospitalization.

8. John Mugo relied on his Witness Statement. The Claimant absconded duty in April 2015. He had been injured in 2011. The Respondent paid his hospital bills. He was not available after April 2015. He went to work much later. The Respondent issued him N.T.S.C. The Claimant decided to leave employment. He then served the Respondent with Summons in the Claim herein. Cross-examined, Mugo affirmed that he knows the Claimant. The Respondent issued N.T.S.C to the Claimant. The N.T.S.C was not availed to the Court. There was no disciplinary hearing. Mugo called the Claimant in 2018, when Mugo became the Human Resource Manager. Terminal dues were not availed to the Claimant.

9. Was the Claimant’s contract terminated by the Respondent unfairly, or at all, or did he desert? Is he entitled to the remedies sought? These are the issues at the heart of the dispute.

The Court Finds: -

10. The Claimant was employed by the Respondent as a General Labourer on 21st December 2001.

11. He left employment in contentious circumstances, in April 2015. The Claimant states he was injured, hospitalized and upon discharge, reported back for duty but was advised he had absconded. The Respondent states that the Claimant absconded, and upon return was issued N.T.S.C. He decided to leave employment, only to turn later with the Court Summons.

12. The explanation by the Respondent, is unconvincing. The Respondent was not able to exhibit in Court the letter to show cause, issued upon the Claimant, which prompted the Claimant to leave employment.

13. It is common ground that the Claimant was injured on his back in 2011. He was treated at various hospitals including Tigoni District Hospital, Limuru Nursing Home and St. Mary’s Hospital.

14. The Respondent assigned the Claimant lighter duty of slashing bushes after the Claimant was treated for back injury. Back injury was occasioned after the Claimant fell, when carrying a bag of fertilizer.

15. The Claimant was re-injured while on lighter duty and was treated at St. Mary’s. It is inconceivable that the Respondent did not know about the Claimant’s injury and hospitalization, having been financially involved from the outset. The Claimant was injured on 2 occasions and treated severally. He was injured at work, and the Respondent was aware from the outset.

16. On 11th March 2015 the Claimant was issued a sick sheet by St. Mary’s Hospital, recommending 14 days of recuperation. Did not the Respondent have this when it purports that the Claimant absconded? Was not the sick off sheet available at the time N.T.S.C is alleged to have issued?

17. The Claimant cannot be said to have deserted, or been absent from work without lawful cause, to warrant dismissal.

18. Even when the Respondent alleges that the Claimant showed up much later in April 2015, there was no disciplinary hearing held. No reason justifying termination can be seen in the record. The Respondent states that the Claimant deserted, and that the Human Resource Manager attempted to contact the Claimant. The Human Resource Manager told the Court that he contacted the Claimant in 2018. Desertion allegedly happened 3 years back, in 2015.

19. It is declared that termination was unfair under Sections 41, 43 and 45 of the Employment Act.

20. The Claimant’s gross monthly salary was Kshs. 12,000. The sum of Kshs. 12,857 he cites as his gross monthly salary, includes overtime of Kshs. 857 paid in February 2015. This was a variable item, paid when the Claimant did excess hours. His invariable gross salary was Kshs. 12,000, captured in the pay slip of March 2015.

21. He is allowed notice of 1 month at Kshs. 12,000.

22. He had worked for 14 years. His record as stated in his evidence, was unblemished. He did not actively contribute to the decision to end his employment. He was paid nothing on termination. His pay slips described his status as ‘permanent.’

23. He is allowed the prayer for 12 months’ salary in compensation for unfair termination at Kshs. 144,000.

24. Costs to the Claimant.

25. Interest allowed at court rates from the date of Judgment till payment is made in full.

IN SUM IT IS ORDERED: -

a. It is declared that termination was unfair.

b. The Respondent shall pay to the Claimant: notice at Kshs. 12,000 and compensation for unfair termination at Kshs. 144,000 – total Kshs. 156,000.

c. Costs to the Claimant.

d. Interest granted at court rates from the date of Judgment till payment is satisfied.

DATED, SIGNED AND RELEASED TO THE PARTIES AT NAIROBI, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 10TH DAY OF SEPTEMBER 2021

JAMES RIKA

JUDGE