[2014] KEELRC 663 (KLR)
The court found that the claimant resigned voluntarily and therefore could not claim that the termination was unlawful or untimely. There was no evidence of redundancy, so severance pay under section 40 of the Employment Act 2007 was not applicable. However, the claimant was entitled to payment for 37 days of...
Source-derived case information.
- Citation
- [2014] KEELRC 663 (KLR)
- Parties
- Claimant: Julius Okello; Respondent: Payless Car Hire and Tours Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 799 of 2012
- Procedural Posture
- Employment Cause / Ex Parte Hearing and Final Award
- Outcome
- Claim partly allowed; terminal benefits for annual leave and salary awarded; severance pay and declaration of unlawful termination denied.
- Legal Topics
- Terminal Benefits, Annual Leave Pay, Salary Arrears, Severance Pay, Resignation, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Okello
Claimant
Payless Car Hire and Tours Limited
Respondent
Procedural Posture
Employment Cause / Ex Parte Hearing and Final Award
Legal Issues
- 1 Whether the claimant is entitled to terminal benefits upon resignation.
- 2 Whether the claimant is entitled to payment for accrued annual leave and salary for February 2009.
- 3 Whether the claimant is entitled to severance pay under section 40 of the Employment Act 2007.
Ratio Decidendi
The court found that the claimant resigned voluntarily and therefore could not claim that the termination was unlawful or untimely. There was no evidence of redundancy, so severance pay under section 40 of the Employment Act 2007 was not applicable. However, the claimant was entitled to payment for 37 days of accrued annual leave and salary for February 2009, as there was no evidence to the contrary. The total award for these dues was Kshs. 153,832, to be paid within 30 days of the award. No order was made as to costs or interest.
Court Disposition
Claim partly allowed; terminal benefits for annual leave and salary awarded; severance pay and declaration of unlawful termination denied.
Orders
- Respondent to pay claimant Kshs. 153,832 for 37 days of annual leave and salary for February 2009 within 30 days of the award.
- No order as to costs and interest.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 799 OF 2012
BETWEEN
JULIUS OKELLO…………………………………………………………………………………….. CLAIMANT
VERSUS
PAYLESS CAR HIRE AND TOURS LIMITED……………………………………….. RESPONDENT
Rika J
CC. Mr. Kidemi
Mrs. Gakoi instructed by Gakoi Maina & Company Advocates for the Claimant
No appearance for the Respondent
_______________________________________________________________
ISSUE IN DISPUTE: TERMINAL BENEFITS
AWARD
1. This Claim has no Response. The Respondent filed no Statement, and did not attend hearing, even after notification. The Statement of Claim was filed on 10th May 2012. The Claimant proceeded to give evidence ex parte on the 17th July 2013.
2. His position is that he was employed by the Respondent as an Accountant, starting the 6th April 1995. He worked up to 1st March 2009, when he resigned. The Respondent accepted his resignation, but failed to pay the Claimant his terminal dues which included-:
Salary for the month of February 2009 at Kshs. 63,412;
Pay for 37 days of annual leave;
Severance pay for 13 years worked at Kshs. 549,570
He claims these benefits; a declaration that termination was unlawful and untimely; and the costs of the Claim with interest.
The Court Finds and Awards-:
3. There is no ground to consider or grant the last prayer on the termination being unlawful and untimely. The Claimant opted to resign, and chose the moment of resignation. He cannot attribute the decision in any way to the Respondent.
4. There is no material to suggest he left employment on account of redundancy, and severance pay under section 40 of the Employment Act 2007, is unmerited. There is nothing on the record to doubt his prayers for pay for 37 days of annual leave and salary for February 2009. He is granted leave pay calculated at the rate of Kshs. 63,412 divided by 26 working days= Kshs. 2,438 x 37 days = Kshs. 90,240. The Salary for the month of February 2009 is granted at Kshs. 63,412, bringing his total Award to Kshs. 153,832. In sum-:
The Claimant left employment of his own volition;
The Respondent shall pay to him 37 days of annual leave and salary for the month of February 2009 at Kshs. 153,832, within 30 days of the delivery of this Award; and
No order on the costs and interest.
Dated and delivered at Nairobi this 14th day of February 2014
James Rika
Judge