[2018] KEELRC 386 (KLR)
The court found that the Grievants' employment was terminated without notice, valid reason, or adherence to statutory procedure. The Respondent did not contest the Claimant's evidence or provide justification for the termination. The court held that the termination did not meet the minimum standards of fairness...
Source-derived case information.
- Citation
- [2018] KEELRC 386 (KLR)
- Parties
- Applicant: Kenya Hotels and Allied Workers Union; Respondent: Mapango Management Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Cause 43 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Termination declared unfair. Compensation and terminal benefits awarded.
- Legal Topics
- Unfair Termination, Compensation for Termination, Statutory Entitlements, Trade Union Association
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Hotels and Allied Workers Union
Applicant
Mapango Management Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Grievants' employment was unfair under the Employment Act.
- 2 Whether the Grievants are entitled to compensation and terminal benefits as claimed.
Ratio Decidendi
The court found that the Grievants' employment was terminated without notice, valid reason, or adherence to statutory procedure. The Respondent did not contest the Claimant's evidence or provide justification for the termination. The court held that the termination did not meet the minimum standards of fairness required under the Employment Act, specifically Sections 41, 43, and 45. The Claimant discharged its burden of proof under Section 47(5), and the Respondent failed to justify the terminations. Consequently, the court declared the terminations unfair and ordered the Respondent to pay compensation and terminal benefits as claimed.
Court Disposition
Claim allowed. Termination declared unfair. Compensation and terminal benefits awarded.
Orders
- Termination was unfair.
- The Respondent shall pay to the Grievants compensation and terminal benefits as particularized in the Statement of Claim and respective Witness Statements filed on 9th October 2017.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MALINDI
CAUSE NUMBER 43 OF 2017
BETWEEN
KENYA HOTELS AND ALLIED WORKERS UNION........CLAIMANT
VERSUS
MAPANGO MANAGEMENT LIMITED.........................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Deputy Secretary General John Simiyu for the Claimant
Onchangu Kemunto & Associates, Advocates for the Respondent
____________________________________________________
JUDGMENT
1. This Claim is brought by the Claimant Union, on behalf of 4 of its Members [Grievants], Julius Ngowa Mwaringa, Jonathan Charo Koi, Stephen Kyalo Masavi and Stephen Muramba Mweni, who were Employees of the Respondent.
2. The Grievants state they were employed by the Respondent, a hotel business, in the positions of Maintenance Technician, Cook, Cook, and Barman respectively. They were employed on diverse dates. The 1st Grievant’s contract was terminated by the Respondent on 31st April 2016. Others’ contracts were terminated on 16th March 2016. They state termination was on account of their association with the Claimant Union. They seek Judgment against the Respondent for:-
a) Declaration that termination was unfair.
b) 1 month salary in lieu of notice.
c) Public holidays.
d) Annual leave.
e) Arrears of salary.
f) Gratuity.
g) Underpayment of salary.
h) 12 months’ salary in compensation for unfair termination.
3. There was no Response filed by the Respondent. The Claimants were heard on formal proof, on 17th July 2018. The date for formal proof was first scheduled for 28th February 2018. The Respondent filed a Memorandum of Appearance on 16th April 2018. All the 4 Grievants testified, adopting their Pleadings, Documents and Witness Statements on record.
The Court Finds:-
4. There is no Response to the Claim. The Pleadings, Oral Evidence, and Documents presented by the Claimant and its Members, are uncontested. The Court is satisfied that the Grievants were employed by the Respondent, on the terms and conditions of service, stated in their Claim. Their contracts were terminated without notice and without valid reason or reasons. They were not faced with any employment offences. They were not heard on any infraction. No ground of any nature, to justify termination, is shown by the Respondent. Termination did not meet the minimum statutory standards of fairness under Section 41, 43 and 45 of the Employment Act 2007. The Claimant has shown, as required under Section 47 [5] of the Employment Act, that its Members’ contracts were unfairly terminated. The Respondent did not justify termination as required under this provision.
5. The nature and amount of terminal benefits claimed is undisputed. Compensation is merited under Section 49 and 50 of the Employment Act as read together with Section 12 of the Employment and Labour Relations Court Act.
IT IS ORDERED:-
[a] Termination was unfair.
[b] The Respondent shall pay to the Grievants compensation and terminal benefits, as particularized in the Statement of Claim, and respective Witness Statements, filed on 9th October 2017.
[c] Costs to the Claimant.
Dated and delivered at Malindi, this 30th day of November, 2018.
James Rika
Judge