[2018] KEELRC 1328 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 1699 OF 2014

(Before D. K. N. Marete)

JOSEPHAT KAIBI LINGUYA......................................CLAIMANT

VERSUS

HIGHLAND CANNERS LIMITED..........................RESPONDENT

JUDGEMENT

This matter was originated by way a Claimant’s Memorandum of claim dated 3rd October, 2014. It does not display an issue in dispute on its face.

The respondent in a Respondent’s Statement of Reply dated 20th November, 2014 denies the claim and prays that it be dismissed with costs.

The claimant’s case is that at all material time to this suit he was an employee of the respondent upto and until April, 2017 as a security officer from 13th January, 1997. He earned Kshs.14,196. 00.

The claimant’s other case is that on 30th April, 2014, he received a letter of termination of employment. This was without notice or reason for termination. It is his case that this was unfair, illegal, null and void ab initio. This is as follows;

6. In view of the foregoing the Claimant avers that his termination and/or dismissal without notice or pay in lieu of notice is wrongful for being unfair, illegal, null and void ab initio.

(i) The Respondent’s letter dated 30th April, 2014 simultaneously seek to terminate and dismiss the Claimant.

(ii) Under Section 45 of the Employment Act (No. 11 of 2007) the Respondent has not demonstrated that there was any valid reason for such termination.

(iii) The said termination and/or dismissal was unfair within the meaning of section 45 of the Employment Act (No. 11 of 2007).

He claims as follows;

a) Salary in lieu of notice Kshs.85,176. 00

b) Annual leave due Kshs.482,664. 00

c) Service pay Kshs.139,230. 00

d) Gratuity Kshs.167,076. 00

e) Severance pay Kshs.139,230. 00

f) 12 months compensation for unfair

Termination Kshs.170,352. 00

Total due Kshs 1,183,728. 00

He prays as follows;

a) A declaration be issued to declare that the Claimant’s dismissal from employment is wrongful.

b) An order that the Respondent issues the claimant with a certificate of service.

c) Special damages in the sum of Kshs.1,183,728. 00.

d) General and exemplary damages for unlawful termination.

e) Interest on (c) and (d) above at Court rates at the time of filing this suit.

f) Cost of this suit.

g) Any other relief as this Honourable Court may deem fit and just to grant.

The respondent’s case is that the claimant’s employment was lawfully terminated on 30th April, 2014 in accordance with section 35 (1) (c) of the Employment Act, 2007. Again, the claimant willingly signed for his full and final settlement on 5th June, 2014 thereby agreeing with the terms and conditions which included a one months salary in lieu of notice.

The respondent’s case is a total denial of unlawful and unprocedural termination of employment and avers that the termination was in tandem with the Employment Act, 2007 with the claimant being only entitled to terminal dues to the tune of Kshs.23,144. 00 as tabulated in the respondents full and final statement of settlement dated 30th April, 2017.

This matter came to court variously until the 20th April, 2018 when the parties agreed on a determination by way of written submissions.

The issues for determination therefore are

1. Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful?

2. Whether the claimant is entitled to the relief sought?

3. Who bears the costs of this claim?

The 1st issue for determination is whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful. The claimant did not file any written submissions.

The respondent in support of a case of lawful termination of employment seeks to rely on section 36 of the Employment Act, 2007 which provides as follows;

“Either of the parties to a contract of service……..may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect to the period of notice required……….”

The respondent therefore forments a case of lawful termination of employment in that he had issued the claimant with a paid notice of termination in satiation of section 36 above. This is as follows;

… the claimant in his bundle of documents (exhibit marked JKL-2) has annexed the release from which is a statement outlining full and final settlement which is a total amount of the dues owing to him as at the time of termination. Schedule D in the statement is an acknowledgement that in lieu of the termination notice, one month’s salary was owing to him. This is a clear manifestation that the Respondent had intended to effect the payment. The Claimant actually signed on the statement, and raised no contention, with the same meaning he was fully aware and agreeable to the sum of Kshs.23,144/= as the final dues owing to him at the time of termination which dues were inclusive of payment in lieu of notice.

This is far from the truth.

The respondent’s case is based on the wrong premise. Section 36 is not total in so far as lawful termination of employment is concerned. It is just a distant limb of the whole issue. The law requires of many other factors that lead to lawful termination of employment. Firstly, there must be substantive justification for termination of employment: the reason or reasons for termination. Secondly and in priority there must be procedural fairness, the issue of a fair hearing through disciplinary proceedings in which the employee fairly participates and or is represented. These comprise sections 43 and 41 of the Employment Act, 2007 and are mandatory.

Section 45 is candid on what amounts to unfair termination of employment. Coupled with sections 44, 46, 47, 48 and 49 of the said Employment Act, 2007, a highlight of inter aliathe basic ingredients of lawful termination of employment are tabulated. The circumstances of the respondent’s case are wanting on this. The reasoning for a case of lawful termination of employment is threadbare. Itherefore find a case of unlawful termination of employment and hold as such.

The 2nd issue for determination is whether the claimant is entitled to the relief sought. He is. Having won on a case of unlawful termination of employment, he becomes entitled to the relief sought.

I am therefore inclined to allow the claim and award relief as follows;

i. A declaration be and is hereby issued that the dismissal of the claimant’s employment by the respondent was wrongful, unfair and unlawful.

ii. One (1) months salary in lieu of notice..............................................Kshs.14,196. 00

iii. Ten (10) months salary as compensation for unlawful

termination of employment Kshs.14,196. 00 x 10 =.............................Kshs.141,960. 00

Total Claim.........................................................................................Kshs.156,156. 00

iv. The costs of this claim shall be borne by the respondent

Dated and signed this 19th day of July, 2018.

D.K. NJAGI MARETE

JUDGE

Delivered and signed this 25th day of July, 2018.

MAUREEN ONYANGO

PRINCIPAL JUDGE

Appearances

1. Miss Miano holding brief for Mpoza instructed by Kinoti & Kibe Company Advocates for the claimant

2. Miss Wambugu instructed by Nyachoti & Company Advocates for the respondent