[2024] KEELRC 2274 (KLR)

Kalinda v Race Guards Limited (Employment and Labour Relations Cause 331 of 2017) [2024] KEELRC 2274 (KLR) (20 September 2024) (Judgment)

Neutral citation: [2024] KEELRC 2274 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 331 of 2017

K Ocharo, J

September 20, 2024

Between

Wambua Kalinda

Claimant

and

Race Guards Limited

Respondent

Judgment

Introduction 1. The Claim before this Court by the Claimant is one for unfair termination, and non-adherence to the requirements of the law as regards his statutory employment rights, by the Respondent. Upon the premises, he seeks a declaration that the termination of his employment was unfair, unpaid dues, and compensatory damages.

2. The Respondent resisted the Claimant’s claim through a Response to the Memorandum. It denied his claim that his employment was terminated, to the contrary he deserted duty, thereby causing his employment to terminate. Further, his plea for the reliefs sought in his Memorandum of Claim, is not founded.

3. When this matter came up for hearing, the Claimant adoptedhis witness statement dated 9th January 2017 as his evidence in chief, and the documents filed under the List of Documents dated 9th January 2017 as his documentary evidence. The Respondent on its part presented one witness [Mr. Michael Rauta] to testify on its behalf. Just as the Claimant did, the witness adopted his witness statement as his evidence in chief and had the documents filed herein by the Respondent tendered as its documentary evidence.

4. In line with the directions of this Court issued on 22nd March 2023, the Claimant filed written submissions dated 20th June 2023 and the Respondent filed theirs dated 15th September 2023.

Claimant’s case 5. The Claimant’s case is that he first came into the employment of the Respondent on 5th July 2004, as a Night Security Guard at a monthly salary of KShs. 6000. In this position, he at all material times, diligently served the Respondent.

6. The Claimant contends further that throughout his service to the Respondent, the latter violated his rights as an employee. It never; paid him a house allowance; allowed him to proceed for his annual leave; remitted NSSF contributions duly; and paid him salary in conformity with the relevant and material Wage Orders at the various periods within his time of employment.

7. The Claimant states that on 28th July 2016, the Respondent’s supervisor Mr. Mutua informed him and other employees that the Respondent would no longer maintain their employment, as the Client who had outsourced the Respondent’s security services had terminated the contract regarding the service. He and the other employees were instructed not to report to work with effect from 1st August 2016.

8. The Claimant asserts that the Respondent’s action amounted to terminating their employment on account of redundancy, termination which was unlawful, unfair, arbitrary, unprocedural, and against the stipulations of the Employment Act, the Constitution of Kenya, and fair labour practice. It did not serve them with the requisite notices; there was no valid selection criteria engaged; and a valid reason for the termination was absent.

9. Upon terminating his employment, the Respondent unjustifiably refused to pay him his terminal dues, hence his claim herein for the dues and damages.

10. Cross-examined by Counsel for the Respondent, the Claimant reiterated that his supervisor Mr. Mutua, informed him that the Respondent no longer had work for him. After being so informed, he never went to the Respondent’s offices. He asserted further, that the Respondent didn’t issue him with any written contract.

11. The Claimant testified that at all material times, he could apply for his annual leave only for the Respondent to decline the applications. The applications were on prescribed forms and were often handed over to the supervisor for processing.

Respondent’s case 12. Through the evidence of its witness, the Respondent ‘s case is true, the Claimant was employed by it, as a guard for one of its client’s stations, namely Telkom Kenya-Nairobi region along Thika road. On 1st August 2016, its Human Resource Manager [ RW1] by its Nairobi Region Coordinator, Mr Daniel Munguti that the client had lost some cables through theft on or about the evening of 30th July 2016 and further that the Claimant had not reported for duty on 1st August 2016.

13. The Human Resource Manager promptly called the Claimant to ascertain the reasons for his absence but the telephone calls went unanswered, as his mobile phone was perpetually off. The Respondent concluded that the Claimant had deserted duty.

14. Cross-examined by Counsel for the Claimant, the Respondent’s witness testified that the Claimant’s monthly salary was KShs. 10,000. The Respondent didn’t tender in evidence any document to show that indeed, this was his salary. Further, looking at the Claimant’s bank statements, it can be discerned that he was largely receiving KShs. 6000.

15. He further testified he could not confirm or deny the Claimant’s assertion that Mr. Mutua terminated his employment with effect 31st July 2016. According to him, the Claimant’s employment was never terminated.

16. The theft incident was reported to the police for investigation.He admitted that he didn’t have any documentary evidence to show that efforts were made to contact the Claimant. Further, the Respondent didn’t serve him with any show cause letter through his postal address.

Claimant’s Submissions 17. The Claimant identified three issues for determination; whether due process was followed prior to the Claimant’s dismissal; is the Claimant entitled to the reliefs sought? and who bears the costs of this suit? Maintaining that he was terminated on account of redundancy, the Claimant submitted that the same was without adherence to the strictures of section 40 of the Employment Act.

18. The requisite notices, that is to the Claimant himself and the Labour Officer, were not issued by the Respondent. The vital process of consultations between the Respondent and the affected employees was not but in place. The Respondent didn’t have specific criteria for selecting the affected employees. All these rendered the termination unfair. To support this submission, reliance has been placed on the case of Kenya Airways Limited v Aviation and Allied Workers Union & Others [2014] eKLR.

19. The Respondent’s allegation that there was theft at its client’s premises and that he deserted duty was just a coverup by the Respondent for its unfair action of terminating his employment. The Respondent failed to place before this Court any material from which it can be seen that indeed there was desertion.

20. It was further submitted that where the employer asserts that the employee deserted duty, the employer is under a duty to demonstrate the efforts that were made to reach out to the employee, and that without lawful authority the employee absented himself from duty. To bolster this submission, the Claimant places reliance on the case of Boniface Nkumbi v Protective Custody Ltd [ 2019] eKLR. The Respondent didn’t establish this.

21. This Court is urged to find that the termination of the Claimant’s employment, was both procedurally and substantively unfair.

22. On the reliefs sought, the Claimant submitted that since the notice contemplated under Section 40 of the Employment Act was not issued, and as his employment was terminable by one month’s notice under Section 35 of the Act, the Respondent should be directed to pay him one month’s salary in lieu of notice.

23. It is further submitted that the Respondent failed to adequately resist his claim for house allowance. Naturally, it was expected of it to demonstrate either, that it paid him a consolidated salary, thus inclusive of the allowance or that house allowance was an item on his pay. In the absence of the proof, the court should have no option other than to hold that the claim is proved. To support this point reliance has been placed on the decision in Joshua Lihanda v Outdoor Occasions Limited [ 2014] eKLR.

24. Where an employee has been terminated on account of redundancy, severance pay is a must pay by the employer under the provisions of the Employment Act. The Claimant wasn’t paid.

25. It was further submitted that the Claimant’s case was that during the whole tenure of his employment, his monthly salary remained KShs. 6000, was not rebutted. This amount was below the minimum wage of night security guards as was provided under the Regulation of Wages Order, 2010, 2012, 2013, and 2017, which provided the minimum wage as, KShs. 7,523, KShs. 9,571, KShs. 10,911. 70 and 12,221. 10, respectively.

26. Under Section 28 of the Employment Act, an employee is entitled to annual leave as of right, and where he doesn’t utilize his earned leave days, the employer is enjoined to compensate him in lieu. The Claimant’s that at all material times, the Respondent didn’t allow him to proceed with his leave was not sufficiently challenged. His claim under this head should be allowed.

27. Lastly, as the termination of his employment was unfair, and considering that he had served the Respondent for 12 years, this Court should consider awarding him compensation to an extent of twelve months gross salary.

Respondent's Submissions 28. The Respondent submits that the burden of establishing a claim, suit or appeal lies on the owner of that claim, suit or appeal, in the defaulting, the claim or appeal must fail. The evidence placed before the Court by the Claimant doesn’t establish the fact that his employment was terminated by the Respondent. He didn’t produce a document to demonstrate the alleged termination. The Respondent’s position that he deserted duty, was not controverted.

29. Having failed to prove that his employment was terminated by the Respondent, and dislodge the Respondent’s case that he deserted duty, the reliefs sought cannot be available to the Claimant.

30. The Respondent concludes its submissions by urging the Court to dismiss the Claimant’s case with costs.

Issues for Determination 31. I have reviewed the pleadings, oral and documentary evidence, and submissions filed by both parties and authorities. The issues for determination are as follows: -a.Whether the Respondent unfairly terminated the Claimant’s employment;b.Whether the Claimant is entitled to the reliefs sought.

Whether the Respondent unfairly terminated the Claimant’s employment 32. The is no dispute that at all material times between July 2004 and 31st July 2016, the Claimant was an employee of the Respondent. The Claimant contended that the Respondent’s supervisor, Mr. Mutua terminated his employment by instructing him not to report to work with effect 1st August 2016. Further, the termination was therefore without substantive justification and procedural fairness. Respondent contended that the termination was at the initiative of the Claimant when he deserted duty.

33. Owing to the diametrically opposite positions taken by the parties herein, it becomes imperative to point out that as regards the burden of proof in disputes regarding the termination of an employee’s employment or dismissal of an employee from employment the Employment Act, places respective obligations on both the employer and the employee. Section 47[5] of the Act, requires the employee to demonstrate that an unfair termination or dismissal occurred and the employer to prove the justification for the dismissal or termination. Jurisprudence around this provision which for some time remained confusing, is now settled. The burden on the employee is only to the extent of putting forth a prima facie case that there was termination or dismissal which was unfair or wrongful.

34. It is upon establishment of the prima facie case that; the burden shifts to the employer to prove the reason[s] for the termination or dismissal [ section 43 of the Act]; the reason[s] was valid and fair [section 45[2] of the Act]; procedural fairness was present [Section 41]; and the same was justified [ section 45[7]. If the employee fails to discharge his burden under the forested provision, his case will automatically fail at that hurdle. Then the Respondent will not be called upon to discharge the burden contemplated in the section.

35. I have carefully considered the Respondent’s Counsel’s submissions regarding the burden of proof in a matter as the instant one, and with great respect, take the view that he didn’t appreciate the dualistic obligations provided for in the stated provision. The burden of proof doesn’t solely lie on the claimant as he suggests.

36. This Court has carefully considered the material placed before it by the Claimant, in particular on the manner of termination of his employment and the fact that the Respondent didn’t call the supervisor Mr. Mutua to testify to discount the Claimant’s version, the allegation that there was no procedural fairness and substantive justification, and the Respondent’s evidence in support of its position that the Claimant deserted duty, and hold that he has discharged his burden under section 47[5] of the Act.

37. Section 43 of the Act places on the employer in a dispute regarding the termination of an employee’s employment, to prove the reason[s] for the termination. It is never enough for the employer to just state that the employee’s employment was terminated for this or that reason, without going further to bring out evidence to demonstrate that the reason genuinely existed. Otherwise, the deeming consequence contemplated under section 45[2] of the Act, will take effect.

38. After discharging the burden of proof under Section 43 above, the employer gets enjoined to discharge a further burden under Section 45 [2] of the Act, to prove that the reason was valid and fair and that the termination or dismissal was with procedural fairness. Without discharging this burden, the termination or dismissal will be deemed unfair.

39. The Respondent asserted that the Claimant deserted duty. As such, the termination was at his initiative. The question that then springs up is, did this reason genuinely exist? Did the Respondent demonstrate that the reason was valid and fair? It is now trite law that where the employer asserts that an employee deserted duty, the reason can only be considered valid, fair, and genuine if the employer sufficiently demonstrates that it made efforts to contact the employee after the alleged desertion to inquire why he or she was not reporting to work and indicate its intention to act against him or her as a consequence of the unauthorized absence from duty.

40. In Joseph Nzioki v Smart Coatings Limited [2017] eKLR, Nduma J held ;“dismissal on account of absconding must be preceded by evidence showing that reasonable attempts was made to contact the employee concerned and show cause letter was issued to such an employee calling upon such employee to show cause why his services should not be terminated.”

41. The Respondent’s witness’s evidence on the alleged desertion, and the efforts made to contact the Claimant after the desertion was sketchy and unconvincing. In my view, in a hotly contested allegation of desertion, bald assertions, like “We tried to call him but he was not picking up calls’’ cannot suffice. When and through which phone number, are vital matters that the evidence of the employer must speak to. The employer should be able to explain why other modes of communication like sending a letter through the employee’s last known postal address were not used.

42. The Respondent’s witness didn’t state when and through which number he tried to reach the Claimant. He admitted in his evidence that no show cause letter was sent through the Claimant’s postal address, but failed to state why it wasn’t. He generally asserted that the Respondent tried to get the Claimant through his relatives without success. Who the relatives were and when they were reached, the witness failed to tell the Court.

43. In the upshot, I conclude that the Respondent failed to prove that the Claimant deserted duty and that if he did, the efforts made to contact him. I am convinced that the Claimant was instructed by his supervisor not to report to work on 1st August 2016, and thus his employment was terminated without cause. The Respondent, therefore, failed to discharge the legal burden under sections 43 and 45 of the Act.

44. Section 41 of the Employment Act provides for procedural fairness. It set out the tenets that an employer contemplating terminating an employee’s employment must conform to. The employer must; inform the employee of the grounds attracting the contemplation; allow the employee an adequate opportunity to prepare and defend himself against the accusations; and consider the representations made by the employee before taking a final decision. Blurred by the position it took that the Claimant deserted duty, and the failure to apprehend the scope of section 47[5] of the Employment Act, the Respondent didn’t lead evidence to show that there was adherence to the provisions of the section.

45. The termination of the Claimant’s employment was without procedural and substantive fairness, it is my conclusion.

Whether the Claimant is entitled to the reliefs sought. 46. The Claimant seeks one month’s salary in lieu of notice, contending that his employment was terminable under section 35 of the Employment Act by one month’s notice. The notice was not issued. I agree with the position he took. As a result, I find that he is entitled to notice pay.

47. He further seeks compensation for the unfair termination of his employment. Section 49[1] of the Employment Act bestows on this Court the authority to award an employee who has successfully assailed his or her employer’s decision to terminate his or her employment, or summarily dismiss him or her from employment, a compensatory relief. The authority is discretionarily exercised, depending on the circumstances of each case, but without losing sight of the factors considerable as set out under section 49 of the Act.

48. I have carefully considered how the termination of the Claimant’s employment was carried out, without regard to the statutory requirements of substantive and procedural fairness; the length of his service to the Respondent [12 years]; and that the Claimant didn’t in any proven manner contribute to the termination, and conclude that he is entitled to the compensatory award to the extent of 7 months’ gross salary.

49. As will come out shortly hereinafter, at all material times, the Respondent paid the Claimant below the minimum wages commanded by the Wages Order. The Wages Order relevant at the time of the termination of his employment was the Regulation of Wages Order 2015, which provided a minimum wage for a night security guard at KShs. 12, 221. 10. This is the figure that I shall employ to compute the compensatory award.

50. The Claimant further asserts that he is entitled to compensation for earned leave days, which he never utilized. He contended that the Respondent didn’t allow him to proceed with leave for the entire period he was, in the service of the Respondent. The Respondent’s witness asserted that the Claimant never applied for his annual leave at any one point. This Court hasn’t lost sight of the Claimant’s testimony that he often applied for his annual leave formally, only for the applications not to be acted upon by the Respondent. The supervisor through whom he alleged that the applications were transmitted was not called by the Respondent to testify in this matter.

51. Section 28 of the Employment Act which provision should be taken to be among those that facilitate a healthy working environment for employees, provides for the right to annual leave. In my view, this right then places a corresponding obligation on the employer, to ensure the enjoyment of the right. This means that the employer must put in place mechanism[s] to ensure that its employees fully and without hindrance, enjoy the right. The Respondent cannot, therefore, find a defence in an assertion that the employee never applied for leave. Where an employee doesn’t proceed with his or her leave, compensation should be made in lieu thereof.

52. By reason of this premises, I find that the Claimant is entitled to compensation for the earned but unused leave days. However, compensation awardable under this head must be cognizant of the provisions of section 90 of the Employment Act. It can only be for three years immediately before the date of filing of this suit.

53. Independent of the claim, the Claimant sought amounts on the basis that at all material times, the Respondent underpaid him. This claim, I say is not misplaced as the Respondent’s Counsel asserts. Considering the provisions of the Labour Institutions Act, and more particularly Section 48 thereof, the claim is properly seated.

54. The Section Provides:(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 applies 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 favourable conditions 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.(3)If an employer is found guilty of an offence under subsection (2), the court may in addition to any other penalty order the employer to pay the employee the difference between the amount which ought to have been paid in terms of the wages order and the amount which was actually paid.(4)Where proceedings are brought under subsection (2) in respect of an offence consisting of a failure to pay remuneration at the statutory minimum remuneration or to provide an employee with the conditions of employment prescribed in the order, then— (a) if an employer is found guilty of the offence, evidence may be given of any like contravention on the part of the employer in respect of any period during the twelve months immediately preceding the date of the offence; and (b) on proof of such contravention, the court may order the employer to pay the difference between the amount which ought to have been paid during that period to the employee by way of remuneration and the amount actually paid: Provided that evidence shall not be given under paragraph (a) unless notice of intention to give such evidence has been served upon the employer together with the summons, warrant, information or complaint.(5)The powers given by this section for the recovery of sums due from an employer to an employee shall be in addition to and not in derogation of any right to recover such sums by civil proceedings: Provided that no person shall be liable to pay twice in respect of the same cause of action.

55. The Respondent didn’t contest the fact that at all material times, the Claimant earned the agreed salary of 6000. To them, it mattered not that the Wages Order provided minimum wages, that were higher than this salary. This right of thought is wholly misplaced as the minimum wages provided for in any Wages Order, cannot be out-contracted.

56. In light of, the admission by the Respondent that the Claimant was earning Kshs. 6000, which in my view was below the minimum wage at the material times, and the clear provisions of the Labour Institutions Act, I do not hesitate to find that the Claimant was underpaid and entitled to compensation to the extent of the cumulative sum, the difference between the KShs. 6000, and what ought to have been paid under the relevant Wages Orders.

57. I agree with the Claimant that the Regulation of Wages Orders, cited in his submissions were applicable at all material times, and it is upon them that compensation under this head shall be computed.

58. In the upshot, Judgment is hereby entered for the Claimant in the following terms: -a.A declaration that the Respondent’s action to terminate the Claimant’s employment was unfair.The Claimant shall be paid: -i.One month’s salary in lieu of notices Kshs. 12,221. 10ii.Compensation for earned but untaken leave days for 3 years (12,221 x /30 x 21x3) KShs. 25, 664. 1iii.Compensation for unfair termination (12, 221 x 7) Kshs. 85,547. 00iv.Underpaid salary for the period 1st August 2013 -31st July 2016. KShs. 197, 862. 8.b.Interest on the sums awarded in (b) above at Court rates from the date of this Judgment until payment in full.c.The Respondent shall bear the costs of this suit.

READ, DELIVERED AND SIGNED AT NAIROBI THIS 20TH DAY OF SEPTEMBER 2024OCHARO KEBIRAJUDGEIn the presence of:Mr Emirudu holding brief for Namada for the ClaimantNo appearance for the RespondentORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.