[2019] KEELRC 1654 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATION COURT AT NAIROBI

CAUSE NO. 910 OF 2014

(Before Hon. Lady Justice Maureen Onyango)

JOSHUA KATIGALA ALUDILA.......................................CLAIMANT

VERSUS

M/S ASSOCIATED

CONSTRUCTION COMPANY LIMITED..................RESPONDENT

JUDGMENT

The Claimant commenced this cause as against the Respondent, vide the Memorandum of Claim dated 28th May 2014 challenging the termination of his employment. The Claimant seeks the following reliefs –

1. An award for the sum of Kshs.312,652 tabulated as herein below:

a. Arrears for the month of November 2013 to 31st January 2014 in the sum of Kshs.48,780. 00.

b. One months’ salary in lieu of termination notice in the sum of Kshs.12,260. 00.

c. Unpaid leave for the year 2013 (21 days x Kshs.542. 00) in the sum of Kshs.11,382. 00.

d. Unremitted NSSF for 4 months (15 months x Kshs.400. 00) in the sum of Kshs.6,000. 00.

e. Unremitted NHIF for 8 months (8 months x Kshs.320. 00) in the sum of Kshs.14,720. 00.

f. Gratuity/Service pay 15 days each year (Kshs.8,130. 00 x 3) in the sum of Kshs.24,390. 00.

g. 12 months wages for loss of employment as provided by section 15 of Labour Institution Act (12 months x 16,260. 00) Kshs.195,120. 00.

2. Interest at Court rates.

3. Certificate of Service.

4. Cost of this suit.

5. A declaration that the termination is unlawful.

The Claimant avers that he was employed by the Respondent on 7th September 2011 as a driver earning a gross monthly salary of Kshs.16,260. 00. He served the Respondent with loyalty and diligence until his employment was wrongfully and unlawfully terminated in January 2014 without any notice or reason.

It is the Claimant’s case that the Respondent failed to pay his salaries from November 2013 despite the Respondent being issued with several letters from the Ministry of Land, Housing and Urban Development.

The Respondent filed a Memorandum of Appearance dated 20th June 2014 but did not file a defence. The respondent’s Advocates filed a Notice of Motion dated 20th November 2017 seeking leave to withdraw from acting on its behalf. The Application was unopposed and as such, leave was granted to the Respondent’s Advocates to cease acting.

The trial proceeded ex parte on 27th January 2018 when the Claimant testified on his own behalf. Thereafter the Claimant’ filed submissions.

During trial, the Claimant adopted his witness statement dated 11th November 2017 as his evidence in chief. He further testified that he had worked for the Respondent for 2 years and 4 months. It was his testimony that his employment was terminated in October 2013 but he left the Ministry of Public Works in January 2014.

It was also his testimony that the Claimant had been paying his NSSF deductions but failed to remit for the remaining period. He further testified that he was not issued with a termination notice and had never been issued with a warning letter during the subsistence of his employment.

The Claimant concluded by urging this Honourable court to grant him the reliefs as prayed.

Submissions by the Claimant

The Claimant submits that the Respondent did not act in accordance with justice and equity in terminating the Claimant’s employment. He relies on section 45(2) and (4) of the Employment Act together with the case of Walter Ogal Anuro vs. Teachers Service Commission [2013] eKLRwhere the Court held as follows:

“… for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination.”

The Claimant concludes by submitting that the Respondent did not follow due process in terminating his employment thereby making his termination unfair, wrongful and unlawful.

Determination

From the pleadings filed herein, the evidence adduced as proof of the claim and the submissions made, the following are the issues for determination –

1. Whether the Claimant’s employment was lawfully and fairly terminated.

2. Whether the Claimant is entitled to the reliefs sought.

Whether the Claimant’s employment was lawfully and fairly terminated

Reasons for Termination

Section 43(1) of the Employment Act requires an employer to prove the reason or reasons for the termination, and where they fail to do so, the termination shall be deemed to have been unfair. Section 41 provides for fair procedure. Under section 45(2) of the Act, termination of employment is unfair if an employer fails to prove that the reason for the termination is valid or that the procedure was fair. The Respondent has not adduced any evidence to prove the reason for termination of the Claimant’s employment and that the claimant was subjected to fair procedure.

The evidence on record, specifically the correspondence from the Ministry of Land, Housing and Urban Development point to the fact that the respondent won the tender for construction of Ndau Sea Wall in Mombasa. Under the contract, the Chief Engineer, Ministry of Public Works was retained as an Engineer for the project. The terms of the contract provided for the respondent as contractor to provide a project vehicle with a driver for use by the Project Engineer and the claimant was the driver attached to the Project Engineer’s vehicle, Registration No. KBQ 219C with effect from 7th September 2011.

It is further evident from the correspondence that on 30th August 2013 the Chief Engineer returned the project vehicle to the respondent after the respondent failed to provide fuel for the vehicle. The Chief Engineer however retained the claimant up to 31st January 2014. By letter dated 23rd January 2014, the Chief Engineer explained that the claimant’s salary was reimbursable under the Bill of Quantities.

According to the letter, the respondent had instructed the Chief Engineer to release the claimant and another driver by the name Patrick Shihemi on what is referred to as “unpaid leave”.

From the foregoing it is evident that the claimant’s employment was terminated by his being sent on the “unpaid leave” which amounts to unfair termination. I therefore find and declare the termination of the claimant’s employment unfair.

The claimant is thus entitled to pay in lieu of notice which I award at Kshs.12,260.

From the correspondence from the Engineer, it is evident that the claimant was not paid salary from November 2013 to January 2014 as claimed. I award the claimant the same at Kshs.36,780.

The letter from the Engineer further confirms that he did not go on leave in 2013. He is therefore entitled to pay in lieu of 21 days’ annual leave for 2013 as prayed in the sum of 11,382, which I award him.

The claimant is not entitled to unremitted NSSF or NHIF as these can only be claimed by the said statutory institutions which are clothed with statutory machinery to do so and in addition, to levy interest and/or penalties from defaulting employers.

The claimant further did not prove that he is entitled to gratuity. The prayer for the same is dismissed.

Having found that he was unfairly terminated, the claimant is entitled to compensation. The claimant’s prayer for compensation of 12 months is however overambitious considering the nature of his employment and length of service. It is my opinion that compensation equivalent to three (3) months’ salary is reasonable in the circumstances of his case. I award him the same in the sum of Kshs.36,780.

The clamant is also entitled to certificate of service.

In conclusion therefore I declare the termination of the claimant’s employment unfair and award him the following –

(1. )--- One month’s salary in lieu of notice...................Kshs.12,260. 00

(2. )--- Unpaid salary for November and

December 2013 andJanuary 2014 (12,260 x 3)............Kshs.36,780. 00

(3. )--- Annual leave for 2013. ........................................Kshs.11,382. 00

(4. )--- Compensation......................................................Kshs.36,780. 00

Total Kshs.97,202. 00

(5. )--- Respondent to issue a certificate of service to the claimant.

(6. )--- Respondent to pay claimant’s costs of the suit and interest on decretal sum from date of judgment.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 6TH DAY OF MAY 2019

MAUREEN ONYANGO

JUDGE