[2014] KEELRC 669 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO. 220 OF 2012

(Before D.K.N. Marete)

JOSEPHAT OCHIENG ODUORI ……………….……………………….CLAIMANT

Versus

INNSCOR KENYA LIMITED…………………..……………………. RESPONDENT

JUDGEMENT

By a memorandum of claim dated the 13th February, 2012 this matter was brought to court. The issue in dispute is cited as

‘Unpaid dues to your former employee JOSEPHAT OCHIENG ODUORI’

The respondent in a memorandum of defence denies the claim and prays that the same be dismissed with costs.

The claimant’s case is that on 12th November, 2001, he was employed by the respondent as a rider at an initial basic salary of Ksh.6,000. 00. This lasted until 30th November, 2011 when he tendered a one month’s resignation notice as per the contract of employment. The respondent failed to pay the claimant’s dues despite clearance as follows;

One month’s salary in lieu of notice of Ksh.13,775. 75

Unpaid overtime of 3 hours per each day worked including holidays since 12th November 2001 @ Kshs 13,000/= per month until 30th September 2011 of Kshs 1,560,000/=, to be ascertained further at the hearing.

Severance pay at the rate of 18 days per year for 10 years @ Kshs.6,887. 87 per year of Kshs.68,878. 70

General damages for wrongful non-payment of the afore-stated dues including interest and costs of this claim.

That despite agitation and demand for his dues the respondent turns a deaf ear and hence this claim. He prays as follows;

One month’s salary in lieu of notice of Ksh.13,775. 75

Unpaid overtime of 3 hours per each ay worked including holidays since 12th November 2001 @ Kshs 13,000/= per month until 30th September 2011 of Kshs 1,560,000/=, to be ascertained further at the hearing.

Severance pay at the rate of 18 days per year for 10 years @ Kshs.6887. 87/= per year of Kshs.68,878. 70

General damages for wrongful non-payment of the afore-stated dues including interest and costs of this claim.

Any other award that this Honorable court may deem fit to so grant.

The respondent denies owing the claimant the amounts claimed on grounds that he exercised the right to terminate the employment by resignation and therefore the right to salary in lieu of notice did not accrue in the circumstances. He submits as follows;

The Claimant is not entitled to any salary in lieu of notice as he is the one who exercised his right to terminate the employment by resignation. The right to salary in lieu of notice did not accrue in the circumstances.

The contract of employment that the claimant voluntarily signed and assented to provided at Clause 2 that the claimant may be required to work at additional times at no additional pay. Annexed hereto marked “IKL 2” is a copy of the Appointment Letter duly signed by the Claimant herein.

The claimant is not entitled to Severance pay as his employment was not brought to an end by redundancy but through voluntary resignation on his part as per Annexture “IKL 1” above.

The claimant is not entitled to any damages as his termination was neither unlawful nor wrongful. The claimant voluntarily resigned from employment.

The respondent further contends that clause 2 of the contract of employment provided for extra working hours and a flexible module for the same without regard to extra payment for the same and therefore the fallacy for the extra or ‘overtime’ work.

The matter variously came for hearing until the 8th July, 2012 when the parties agreed to dispose of the matter by way of written submissions.

The issues for determination therefore are;

Whether the claimant is entitled to the claim?

Who bears the costs of the claim?

The 1st issue for determination is whether the claimant is entitled to the claim as made. In his written submissions the claimant gives a detailed analysis of his employment as a motor cycle rider. On resignation the respondent agreed to pay him his dues and one month’s salary in lieu of notice. These were not forthcoming and therefore this claim. It is notable that these submissions are detailed but do not bring out the case for the claimant.

When the matter came for mention on 16th September, 2013 with a view of confirming compliance, there was no appearance for the respondent. It would appear that there are no submissions from his end either. However, this matter speaks for itself. It is not in order for a party to vacate employment so peaceably and thereon lay down a mammoth claim for compensation for issues that were or are not even agreed on. Even a case for salary in lieu of notice though conceded by the respondent in his letter of acceptance dated 1st September, 2011 is not a legal entitlement and can only be concessionary. After all, the claimant had issued a month’s notice and served the same. The offshoot of this line of thought is that the claimant has not presented a sustainable case for consideration. I am therefore inclined to dismiss his claim with costs to the respondent. And this comes and answers all the issues in dispute.

Dated, delivered and signed this 7th of February, 2014.

D.K. Njagi Marete

JUDGE

Appearances:

Mr. Wangila instructed by Mandala & Company Advocates for the claimant.

Mr. Owino instructed by A.H. Malik & Company Advocates for the respondents.