[2018] KEELRC 1325 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO. 1501 OF 2013

(Before D. K. N. Marete)

KENNEDY OTIENO ODALO....................................CLAIMANT

VERSUS

PAPER CONVERTERS (K) LIMITED................RESPONDENT

JUDGEMENT

This matter was brought to court vide a Statement of Claim dated 25th July, 2013. The issue in dispute is therein cited as;

“Unlawful termination of the Claimant Kennedy Otieno Odalo from his employment and refusal to pay him his terminal benefits”

The suit is not defended or at all. The respondent has not filed any response.

The claimant’s case is that on or about 2006 he was employed by the respondent as a casual labourer. He earned Kshs.1,720. 00 exclusive of house allowance.

The claimant’s further case is that the respondent confirmed the claimant to permanent employment as Assistant Operator in October, 2008 at a monthly salary of Kshs.6,500. 00 and a house allowance of Kshs.3,000. 00. He served with diligence and faithfulness until the 1st September, 2012 when his services were terminated on account of redundancy.

The claimant avers that his termination of employment was in violation of section 41 of the Employment Act, 2007 in that he was not invited to show cause as to why he should not be terminated and neither was he issued with notice.

The claimant’s further case is that on termination, he sought the advice of Kenya Union of Printing, Publishing Paper Manufacturer, Pulp & Packaging Industries.

He claims as follows;

(i) 2 months notice……………………………………………………27,855

(ii) Leave for 6 months =6 x 10,327. 22………………………….61,963. 32

(iii) 2 months unpaid salary………………………………………..…27,855

(iv) House allowance =60 months x 3,600……………………...…216,000

(v) Gratuity 15 days for every year worked =15 x 9………………..62,673

30

(vi) 12 months salary compensation for unlawful

Termination = 12 x 13,927……………………………….……………167,127

(vii) Certificate of Service

Total Kshs.563,473. 32

He prays as follows;

i) A declaration that the Claimant’s termination from his employment was unlawful and unfair.

ii) The Claimant be paid his terminal benefits as set out in paragraph 10 hereinabove totaling to Kshs.563,473. 32/=

iii) The Respondent be ordered to compensate the Claimant for wrongful termination at the equivalent of twelve (12) months gross salary.

iv) The Honourable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice.

v) The Respondent be ordered to issue the Claimant with a certificate of service as required by the provisions of section 51 of the Employment Act, 2007.

vi) The Respondent to pay the costs of this claim

vii) Interest on the above at court rates.

The matter came to court variously until the 17th April, 2018 when the parties agreed on a disposal 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 in his written submissions dated 30th April 2018 presents and submits a case of unlawful termination of his employment as follows;

The claimant was unfairly terminated from his employment. The respondent did not issue the claimant with sufficient notice as required by the CBA nor did he give the claimant an opportunity to show cause as to why his services should not be terminated. Clause 12(A) of the CBA states as follows;

12. (a) Established employees of upto five (5) years service shall be subject to not less than one calendar month’s Notice or pay in lieu.

Those with more than five (5) years service shall be, subject to two calendar month’s notice or two month ‘s’ pay in lieu

The respondent violated Clause 13 (b) (i) of the CBA which provides;

The claimant further submits that it was a requirement of the Collective Bargaining Agreement that;

“The Union shall be informed 3 months in advance of the intended redundancy”.

The claimant further seeks to rely on the authority of Hesbon Ngaruiya Waigi vs. Equitorial Commercial Bank Limited Cause No.60 of 2013 where Mbaru, J. observed as follows;

“Any termination of an employee following a declaration of redundancy must be based on the law otherwise the same becomes wrong and the grounds used to identify the affected employees are not as per law the same becomes unfair”. Her ladyship went ahead to quote section 4 of the Employment Act, 2007 which stipulates the conditions that an employer should comply with when terminating a contract of service on account of redundancy. She further emphasized that the provisions under Section 40 of the Employment Act are mandatory and not left to the choice of an employer.

It is his submission and case that the mandatory requirements of section 40, Employment Act, 2007 were violated by the respondent thereby rendering the termination unlawful.

The claimant further sought to rely on the authority ofKenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others (2014) eKLRwhere the court observed as follows;

a. Provide the workers representatives concern in good time with relevant information including the reasons for terminations contemplated, the number and categories of workers likely to be affected and period over which the termination are intended to be carried out.

b. Give, in accordance with National Law and practice, the workers representatives concern on an earlier notice as possible. Article 20(1) of the ILO stipulates that when an employer contemplates the introduction, programme, organization, structure or technology that are likely to entail terminations, the employer should consult the workers’ representatives as early as possible.

Article 23(1) of the ILO states that the selection by the employer of workers whose employment is to be terminated for reasons of an economic, technological, structural or similar nature should be made according to criteria, established whenever possible in advance, which gives due weight both to the interest of the undertaking establishment or service and to the interest of the workers.

The claimant further submits a violation of section 41 of the Employment Act, 2007 as follows;

“Every person has the right to fair labour practices. While Section 40(2) (a) (b) of the Employment Act 2007 Laws of Kenya stipulates “An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions;

a) Where the employee is a member of a Trade Union the employer notifies the Union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for and the extent of the intended redundancy not less than a moth prior to the intended date of termination on account of redundancy”. In addition section 40 (1) (a) provides “That the employer has in the selection of the employees to be declared redundant had due regard to the seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy”.

This in toto renders the termination unfair and unlawful.

The respondent denies a case of unlawful termination of employment and instead submits a case of redundancy where the law was fully complied with. It is her case that the claimant’s case is contradictory as to the date of employment. It is therefore the onus of the claimant to prove his case as required by section 107 of the Evidence Act, Chapter 80, Laws of Kenya as hereunder;

1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

The respondent submits that the entire matter rested on a case of redundancy which was reported the claimant’s union and managed appropriately in tandem with section 40 of the Employment Act, 2007. This is as follows;

The Claimant was ably represented by his Union all through the redundancy process. The Union lodged a trade dispute on behalf of the employees being declared redundant by the Respondent and the dispute was resolved amicably when the Respondent increased the redundancy packages for all the affected employees. Neither did the Claimant nor the Union challenge the redundancy itself but what was in dispute was the terminal benefits payable to the Claimant which was ultimately resolved. After all this back and forth, the Claimant’s dues were computed and were sent to the labour office for collection by the claimant. …

In a situation like this one, the respondent submits that sections 41, 43, 45, 46, 47, 48 and 49 are inapplicable in the circumstances. The claimant cannot be heard to blow hot and cold at the same time.

The respondent’s case overwhelms that of the claimant. This is both on a balance of probability and preponderance of evidence. The claimant has not adduced evidence to support a case of unlawful termination of employment or

even controvert the respondent’s able case of redundancy duly resolved in accordance with the law. He, in the circumstances, falls short of satiating the burden of proof of unlawful termination of employment as enunciated in section 47 (5) of the Employment Act, 2007. I therefore find a case of lawful termination of employment and hold as such.

The 2nd issue for determination is whether the claimant is entitled to the relief sought. He is not. Having lost on a case of unlawful termination of employment, he becomes disentitled to the relief sought.

I am therefore inclined to dismiss the claim with orders that each party bears their own costs of the claim.

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. Mr. James Nyakundi instructed by Nyabena Nyakundi & Company Advocates for the claimant

2. Mr. Museve and Kilomo Instructed by the Federation of Kenya Employers for the respondent.