[2022] KEELRC 12696 (KLR)
The court found that the termination of the grievant's employment was unfair and unlawful as the respondent failed to justify the reasons for termination and did not participate in the proceedings. The court held that the compensation for unfair termination should be limited to three months' salary, given the...
Source-derived case information.
- Citation
- [2022] KEELRC 12696 (KLR)
- Parties
- Applicant: Kenya National Private Security Workers Union; Respondent: Taidy’S Restaurant Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1910 of 2015
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- Claim partly allowed.
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Compensation for Termination, Underpayment of Wages, House Allowance, Overtime Pay, Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Private Security Workers Union
Applicant
Taidy’S Restaurant Limited
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the termination of the grievant's employment was unfair and unlawful.
- 2 Whether the claimant is entitled to compensation and other monetary claims arising from the termination.
- 3 Whether punitive damages should be awarded.
Ratio Decidendi
The court found that the termination of the grievant's employment was unfair and unlawful as the respondent failed to justify the reasons for termination and did not participate in the proceedings. The court held that the compensation for unfair termination should be limited to three months' salary, given the grievant's period of service was only eleven months. The court declined to award punitive damages due to lack of evidential support. The court allowed the claims for notice pay, underpayment of wages, unpaid house allowance, overtime, pro-rata leave, SACCO deductions, and ordered the issuance of a certificate of service. Costs and interest were also awarded to the claimant.
Court Disposition
Claim partly allowed.
Orders
- Declaration that termination was unfair.
- Respondent to pay notice at Kshs 10,912.
Full Case Text
Judgment text and source record
26 paragraphs
Kenya National Private Security Workers Union v Taidy’S Restaurant Limited (Cause 1910 of 2015) [2022] KEELRC 12696 (KLR) (29 September 2022) (Judgment)
Neutral citation: [2022] KEELRC 12696 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1910 of 2015
J Rika, J
September 29, 2022
Between
Kenya National Private Security Workers Union
Claimant
and
Taidy’S Restaurant Limited
Respondent
Judgment
1. This claim is undefended.
2. It is presented by the claimant union on behalf of its member Jane Kanairo [ grievant].
3. Kanairo was employed by the respondent as a security guard on July 27, 2013. Her first salary was Kshs 7,200 monthly.
4. It was reviewed to Kshs 9,000 monthly. She was suspended on May 26, 2014, on allegation that she had failed to report to work on May 23, 2014.
5. She explained that her child was gravely ill on this date, making it impossible for her to report to work. She had permission to be away. On June 3, 2014however, the respondent terminated her contract. She states that the respondent’s security supervisor was behind her woes, after the grievant had reported him to Muthangari police station for confiscating her personal belongings.
6. The claimant reported the existence of the dispute to the ministry of labour on June 9, 2015. The respondent did not cooperate and conciliator issued certificate of unresolved dispute under section 69 of the Labour Relations Act, 2007. The claimant prays the court to find termination was unfair and unlawful, and award judgment as follows: -i.Declaration that termination was unfair.ii.Notice at Kshs 10,912. iii.Underpayment of wages for 10 months at Kshs 19,120. iv.Unpaid house allowance at Kshs 16,360. v.Unpaid standard overtime at Kshs 63,289. vi.Pro –rata leave at Kshs 1,697. vii.SACCO at Kshs 500 for 5 months at Kshs 2,500. viii.Money owed by yourselves at Kshs 1,200. ix.12 months’ salary in compensation for unfair termination.x.Certificate of service.xi.Punitive damages.xii.Costs and interest.
7. The grievant testified on June 9, 2022, adopting her pleadings and documents on record. The claim was last mentioned on July 8, 2022 when the claimant confirmed filing of its submissions.
The Court Finds: - 8. The grievant worked for 11 months. Her prayer for compensation equivalent of 12 months’ salary, is disproportionate to the period of service. She is allowed equivalent of 3 months’ salary in compensation for unfair termination.
9. The prayer for punitive damages is without foundation. It is unsupported in evidence and fact. It is declined.
10. There is adequate, unchallenged evidential material to support the other prayers. There is adequate statutory and case-law invoked by the grievant, to back up her prayers.
11. The court did not however, understand her prayer [viii], for ‘’ money owed by yourselves at Kshs 1,200].’’ It was not explained in the pleadings or evidence on record. The prayer is declined.In sum it is ordered: -a.The claim is allowed in terms of prayers [i], [ii] [iii] [iv] [v] [vi], [vii] and [x].b.Prayer [ix] is allowed at equivalent of 3 months’ salary.c.Prayers [viii] and [xi] are rejected.d.Costs to the claimant.e.Interest granted at court rates from the date of judgment till decree is satisfied in full.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 29TH DAY OF SEPTEMBER, 2022. JAMES RIKAJUDGE