[2016] KEELRC 477 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 218 OF 2014

(Before Hon. Lady Justice Maureen Onyango)

JOSEPH MIKAE OGENDA.........................................................CLAIMANT

-Versus-

J.R.S. GROUP SECURITY LIMITED...................................RESPONDENT

J U D G E M E N T

The Claimant Joseph Mikae Ogenda was employed as a Security Guard by the Respondent J.R.S Security Limited from 1st April, 2010 to 3rd March, 2014 when his employment was terminated. He alleges that the termination was unlawful and seeks payment of notice, service benefits, overtime and compensation for unfair termination.

The Respondent filed a Memorandum of Defence in which it admits employing the Claimant but denied unlawfully terminating his employment. It is the Respondent's case that the Claimant deserted work on 2nd March, 2014 following a break-in at the place of his assignment at Ninga Flats (also known as Okonya) at Mamboleo Estate of Kisumu City. He also failed to record a statement on 3rd March, 2014 as directed by the Respondent's Operations Manager. The Respondent further denied that the Claimant is entitled to notice, severance pay, leave or compensation.

At the hearing of the case the Claimant testified on his behalf while the Respondent called David Mutuku Mulwa (RW1) who was a Night Manager of the Respondent at the time of termination of the Claimant's employment. The parties thereafter filed and exchanged written submissions. The Claimant was represented by Mr. Chepkwony instructed by M/s Chepkwony & Co. Advocates. The Respondent was represented by Mr. Omondi instructed by M. M. Omondi & Co. Advocates.

Determination

The issues for determination are whether the Claimant was unfairly terminated or he deserted work as alleged by the Respondent and if he is entitled to the remedies that he has prayed for.

The Claimant testified that he reported to work as usual on 2nd April, 2014. During the night there was a break-in in one of the flats on the upper floor. Thieves gained entry into the flat after breaking a kitchen window. The Claimant called back-up department of the Respondent who responded to his call. RW1 Mutuku was with the back-up team that responded to the Claimant's call. The incident was reported to Mamboleo Police Post by the Claimant and the caretaker of the building in the company of RW1. The Claimant wrote a statement at the police post on 3rd April, 2014. After reporting the incident to the police post the claimant went back to the Respondent's head office with RW1. While at the office RW1 told him that there was no more work for him. He testified that he never went back to work after that and that he was not issued with letter of termination.

For the Respondent RW1 testified that on the night of 2nd March, 2014 he was working as Night Manager when the controller received a call from the Claimant reporting an attack. RW1 together with a driver went to the site and met the Claimant and the caretaker of the premises outside the gate of the building. They all went to the flat which had been broken into and confirmed that the thieves had broken glass of a kitchen window and gained entry into the house. The matter was immediately reported to the police who went to the site at around 2am on 3rd March, 2014. The Claimant was directed to report to the police post in the morning to record a statement.

After reporting to the police the Claimant went to the Respondent's head office where he was told by the manager to wait in class where new employees were being trained until he had recorded a statement. The Claimant did not record a statement and after staying in the class until 1pm, was given permission to go for lunch but never reported back to date. After 7 days the Claimant was deemed a deserter.

Under cross examination RW1 stated that he was not at the office at the time the Claimant alleges he was told by the Manager that there was no more work for him as he was working on night duty.

Section 41 of the Employment Act provides for the procedure for termination or dismissal. It provides that an employee must be given a hearing before termination and must be allowed to be accompanied either by a union official or a fellow employee of his choice. Section 43 of the Act provides that the employer must prove a valid reason for termination.

In the present case, the Respondent did not tell the Claimant anything after asking him to wait in the classroom. The Respondent alleges the Claimant was given permission to go for lunch but never reported back while the Claimant testified that he was told there was no work for him by the Manager. RW 1 admitted he was not present at the office at the time and therefore he cannot confirm what transpired. The Respondent has not explained why it made the Claimant go to class without telling him his fate after he was withdrawn from his assignment following the break-in. The Respondent has not shown that the Claimant was summoned for a hearing or even issued with a letter to show cause. There is no evidence that the Claimant was told to prepare a statement and failed to do so. The Training Manager who is alleged to have given the Claimant permission to go for lunch was not called to testify. The Manager whom the Claimant alleges terminated him verbally was also not called to testify. Not even their written statements were filed in court.

This leaves the testimony of the Claimant, to the effect that when he went to the office he was verbally terminated by the Manager uncontested. I therefore find that the Claimant's employment was terminated unfairly by the Respondent.

Remedies

The Claimant prayed for the following:-

a) 1 Month Salary in lieu of Notice

(Basic Salary +House Allowance)

10,116. 15 + 1,517. 42 Kshs. 11,633. 57/=

b) Service Benefit

15 days x years worked x Basic Allowance/30 days

15 days x 4 years x 10,116. 15/30 days Kshs. 20,232. 3/=

c) Overtime Dues

45 hrs per Week

12 Hrs x 6 days =72 Hrs - 4 =27 OT

27 P.W x 4 Wks =108Hrs P.m.

108 x 1. 5 x 10,116/195

8,404 x 48 Months Kshs.403,392/=

d) Compensation for unfair termination

gross pay x 12 months

11,633. 57 x 12 months Kshs.139,602. 84/=

TOTAL CLAIM Kshs.574,860. 71/=

Having found that the Claimant was unfairly terminated, he is entitled to 1 months salary in lieu of notice in line with section 49(1) of the Employment Act. I award him Shs. 12,548. 50 being the gross minimum wage for night watchman for 2013.

The Claimant prayed for service pay. Service Pay is provided for under section 35(5) as read together with 35(6) of the Employment Act. The Respondent submitted the Claimant's NSSF statement as proof that he is not entitled to service pay. On scrutiny of the statement, I find that no payment was made for year 2010 save for Shs.200 each in October and November. In 2011 the total remittance was shs.2,150, in 2012 it was shs.2,400, in 2013 Shs.2,800 and in 2014 shs.3,200. Part of the remittances for 2014 were made after the claimant left the Respondent's employment while the remittances for 2010, 2011 and 2012 were voluntary meaning that the Respondent did not make any standard (statutory) remittances for 2010, 2011, part of 2012 (6 months), and part of 2013 (5 months). The Respondent did not submit any record of remittances to NSSF or payslips of the Claimant to show that NSSF was deducted from his salary.

For these reasons, I find that the Claimant is entitled to service pay for the 4 years he worked for the Respondent at the rate of 15 days salary per year worked. I award him Shs. 25,097/-.

The Claimant testified that he was employed on a salary of Shs.5,000 which was increased to Shs.6,000 and thereafter shs.7,500 which he was earning at the time of termination of his employment. According to the Regulation of Wages and Conditions of Employment (General) Order for 2013 the basic minimum salary for a night watchman from 1st May, 2013 was Shs.10,911. 70 while from 1st May 2012 it was shs.9571. 65. From 1st May, 2011 it was Shs.8463. 00 and from 1st May 2010 it was Shs.7523. 00

The house allowance is calculated at 15% of basic salary at 15% of basic salary. Based on a salary of 7500 the claimant was therefore underpaid and is entitled to the underpayments as follows ;

1st May, 2010 to 30th April, 2011 Shs. 13,817. 40

1st May, 2011 to 30th April, 2012 Shs. 26,789. 40

1st May, 2012 to 30th April, 2013 Shs. 42,087. 60

1st May 2013 to 2nd March, 2014 Shs.50,484. 55

NB: The underpayments have been derived from adding house allowance of 15% to the minimum wage less Shs. 7500 which the claimant was paid and thereafter multiplying by the number of months.

Having been unfairly terminated the claimant is entitled to compensation. In awarding compensation the court is required to consider the factors set out in section 49(4). I have considered the length of the claimant's employment, his expectations, the fact that he was never granted annual leave and rest days including public holidays. It is my opinion that in the circumstances, 10 months gross salary is reasonable compensation. I therefore award him the same at Shs. (12,548. 50x10) 125,485. 00.

The Claimant further prayed for overtime. As stated by the Claimant and confirmed by RW1, he worked 84 hours a week instead of 52 provided for in the Regulation of Wages and Conditions of Employment (Private Security Services) order. That means that for each week he worked a total of 32 overtime hours out of which 6 days was normal overtime payable at 1. 5 of the hourly rate while the 7th day and public holidays are payable at double the hourly rate (Refer to Rule - of (General) Order and Rule of Private Security Services) Order. For one year he is entitled to 32 hours per week for 6 days for 52 weeks at an hourly rate of 98. 40 at one and a half times the hourly rate for normal overtime as provided in the Regulation of Wages and Conditions of Employment (General) Order.) He is therefore entitled to overtime at (32x52x 1. 5x98. 40) Shs. 244,608.

For hours worked on Sundays and public holidays the overtime rate is double the hourly rate. For 52 weeks (one year) and 11 public holidays he is entitled to the (11x12x98. 40x2) Shs.25,977. 60.

The prayers for overtime have been awarded for only 12 months as they are deemed to be continuing wrongs under section 90 of the Employment Act.

Before I conclude, I must explain that I have granted the Claimant's prayers for underpayments although not expressly prayed for based on the provisions of section 26 of the Employment Act and section 48 of the Labour Institutions Act which provide as follows:-

26. Basic minimum conditions of employment

(1) The provisions of this Part and Part VI shall constitute basic minimum

terms and conditions of contract of service.

(2) Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Industrial Court are more favourable to an employee than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply.

Wages Order to constitute minimum terms of conditions of employment.

48. (1) Notwithstanding anything contained in this Act or any other written law—

(a) the minimum rates of remuneration or conditions of employment established in a wages order constitute a term of employment of any employee to whom the wages order apply and may not be varied by agreement;

(b) if the contract of an employee to whom a wages order applies provides for the payment of less remuneration than the statutory minimum remuneration, or does not provide for the conditions of employment prescribed in a wages regulation order or provides for less favourableconditions of employment, then the remuneration and conditions of employment established by the wages order shall be inserted in the contract in substitution for those terms.

(2) An employer who fails to—

(a) pay to an employee to whom a wages regulation order applies at least the statutory minimum remuneration; or

(b) provide an employee with the conditions of employment prescribed in the order, commits an offence.

The Claimant pleaded at paragraph 9 of his claim as follows:-

The Claimant further avers that during his employment with the respondent he was grossly underpaid having regard to the regulation of wages (general) (amendment) order, in force, worked overtime without payment, he worked of rest days without pay and worked on public holidays without due pay.

He however did not expressly pray for underpayments under paragraph 9 of the claim which contains the tabulation of his prayers. It is my opinion that the prayer for underpayments is covered under section 26(2) of the Employment Act and Section 48 (1) of the Labour Institutions Act as well as the Principle in the case of Odd Jobs v Mubia (1970). EA.476, tothe effect that a court may determine a matter not specifically pleaded if from the pleadings it is a matter for which the court ought to make a determination.

Dated, signed and delivered this 15th day of September, 2016

MAUREEN ONYANGO

JUDGE