[2013] KEELRC 144 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT AT NAIROBI

CAUSE NUMBER 166 OF 2011

BETWEEN

KENYA UNION OF COMMERCIAL, FOOD

AND ALLIED WORKERS [KUCFAW]……………………………………………………….…...................................…………….…….CLAIMANT

VERSUS

DAYLITE DRYCLEANERS ………………………………………………………………..…………………… RESPONDENT

Rika J

CC. Leah Muthaka

Mr. Nyumba instructed by the Claimant Union

Mr. Kouna instructed by Muchoki Kang’ata & Company Advocates for the Respondent

ISSUE IN DISPUTE: UNFAIR AND UNLAWFUL TERMINATION

AWARD

1. The Memorandum of Claim was filed on 19th May 2011. The Respondent filed its Memorandum of Reply on 5th September 2011. The Claim is brought by the Claimant Union on behalf of its Member and former Employee of the Respondent Emily Wagaki King’ori [hereinafter named as the Grievant].

2. Emily testified and closed her case on 26th October 2011. The Respondent called its Director Purity Wambui Wairimu and Supervisor Daniel N. Mwangi who testified on 15th January 2013 when the Respondent’s case closed. The dispute was last mentioned in Court on 16th April 2013 when the Court confirmed receipt of the Parties’ Closing Arguments and advised the Parties Award would be delivered on Notice.

3. The Grievant testified that she was employed by the Respondent Dry Cleaner as a Receptionist, on 1st December 2000. Her salary was Kshs. 6000 per month. She received cash, and the dirty laundry items from customers, brought for cleaning. She was dismissed by the Respondent on 13th October 2007, with the letter of dismissal backdated to 15th September 2007.

4. She did not report to work on 13th October 2007. It was Eid al-Fitr public holiday, the day when the Moslem Brethren break the fast. The day fell on a Saturday. Emily stated she had not been asked to report for duty. When she reported the following Monday 15th October 2007, she was asked by her Supervisor not to enter the workplace. She was directed to see the Manager at the Office near Nakumatt Lifestyle, a Supermarket in Nairobi. She met the Manager who issued the Claimant the letter of summary dismissal.

5. The Grievant approached her Union who in turn endeavoured to meet the Respondent, to settle the dispute under the Voluntary Dispute Settlement Mechanism. The effort was completely rebuffed by the Respondent. The dispute then progressed to the Minister for Labour. A Conciliator was appointed, and recommended that the Grievant’s dismissal be commuted to a regular termination, whereof the Grievant would receive full terminal benefits. The Claimant and its Member Emily were agreeable to the recommendation, but the Respondent categorically refused to yield any ground. This is why the Parties are in Court.

6. Emily explained that it is true she had been issued a warning letter by the Respondent on 20th November 2006. It was alleged the Claimant was found to possess a fake Kshs. 1000 currency note. She denied possession of such currency note. The Grievant has received cash from Customers on 19th November 2006. She handed over the cash to her Supervisor, who acknowledged receipt, and was satisfied with what cash was handed over by the Grievant. It was later on 20th November 2006 that he alleged part of what was given to him by the Grievant the previous day, to be fake currency. She was not given an opportunity to explain herself before dismissal. Her last salary was Kshs. 8,800. She worked from 7. 00 a.m. to 6. 00 p.m., Monday to Saturday.

7. She had worked well on Friday the 12th October 2007. She had been sent to pick a Customer’s dirty linen from some building near Muindi Mbingu Street Nairobi. On return, her Manager called her, asking her where she had been. She explained, and considered the issue settled. She continued working and was not given any instructions to report to work during the Eid al-Fitr day, Saturday 13th October 2007. She testified that the Conciliator confirmed her terminal benefits to include overtime pay. She prays to be paid Kshs. 23,937 occasioned by the understatement of her wages from 1st May 2004 to October 2007, based on the various Regulation of Wages (General) (Amendment) Orders. She seeks overtime pay of Kshs. 424,011 .90, dating back to January 2001. She also prays for Certificate of Service and Costs of the Claim.

8. On cross-examination, the Grievant told the Court she was employed with effect from 1st December 2000. There was no letter of appointment. There were about 10 employees at the Respondent. Their duties were different. Some of the employees were sorting clothes; others were pressing the laundry; while the others were cleaning the floor. There was an Accountant and a Cashier. She was the only receptionist. She was relieved by another employee when she went on leave. She was not the sole Cashier. She was not operating the laundry machine. It is true she relieved an employee who was sick from laundry on 12th October 2007. It was not true that her duties were in the backroom. It is true there was a case involving a fake Kshs. 1,000 currency note. It was not mentioned in the warning letter. Her Supervisor was Mr. Njuguna. She responded to the warning letter by word of mouth.

9. The Grievant joined KUCFAW in 2005. She was issued membership card and paid subscription fees. She did not have receipt for such payment in Court. She had informed her Supervisor when she went to Muindi Mbingu to collect dirty linen. She did not absent herself without the leave of her Supervisor. She was not asked to work on 13th October 2007, and was not aware if other employees turned up for work. She was dismissed for failure to turn up on 13th October 2007. The employees never worked during public holidays. She was Cashier-Receptionist and never worked at the Laundry room in the 6 years of employment. She was trained on the job as a Cashier. She did not possess formal qualifications for the role. All her 10 Colleagues worked in the backroom. She never did sorting. She worked overtime as shown in her pleadings. She used to carry the key to the premises. She opened at 7. 00 a.m. The Respondent was granted ample opportunity to appear before the Conciliator. Emily did not have the minutes recording the conciliation meeting. Her relationship with the Respondent for 6 years was amicable. She however would not describe her employer as reasonable. The Grievant rejected the suggestion by the Respondent’s Advocate that she worked up to 4. 00 p.m. on Saturdays.

10. Emily completed her evidence with the clarification on redirection that there was no other reason known to her, other than the possession of the fake currency note, that would give rise to the warning letter. It is her right to belong to a trade union. She worked in the front office. If she had been asked to work elsewhere, she would have obeyed. She issued receipts to Customers. There were no complaints regarding her work. She had been instructed by the Respondent to open the business at 7. 00 a.m. each day. She saw the letter dated 8th January 2008 from the Respondent to the Conciliator where the Respondent expressed its inability to attend conciliation meeting, for the first time during the Court hearing. The Respondent attended the last conciliation meeting. The Claimant prays the Court to uphold the Claim.

11. Purity Wambui Wairimu is the Director of the Respondent. She is involved in the day to day running of the business. Her responsibilities include staffing, finances and delivery of clothes to Customers. The Grievant was employed by the Respondent on 1st December 2000. Wairimu recruited her as a General Labourer. She was assigned the Counter, where she received clothes, issued job orders and delivered clothes to Customers. She worked for 7 years. She worked from 8. 00 a.m. to 5. 00 p.m. She did not work beyond these hours. Emily was occasionally seconded to sorting, where clothes were classified in accordance to their colour and date of receipt. She earned Kshs. 6,000 per month at the beginning, and Kshs. 8,800 by the time she left. She never once complained about underpayment. She was complacent and arrogant. She was not taking orders from her Supervisor. Wairimu gave her verbal warnings. At one time the witness gave Emily a written warning. She never changed her ways. She was summarily dismissed. She failed to report for duty when instructed by her employer to report. The Eid al-Fitr public holiday was declared by the Authorities abruptly, leaving the Respondent little room to arrange for its Saturday work. Wairimu specifically asked Emily to report to work because her colleague was off duty. The Grievant agreed she would work on 13th October 2007. She did not report. The Respondent summarily dismissed her on valid ground.

12. On cross-examination, Wairimu explained the reference to the month of September 2007 in the letter of dismissal was made through a typing error. Business opened at 8. 00 O’clock and closed at 5. 30 p.m. It was not the Claimant who daily opened the business at 7. 00 a.m. as claimed in her evidence. The Respondent learnt 13th October2007 would be Eid al- Fitr on 12th October 2007. This was communicated to the Claimant verbally. The warning letter of 20th November 2006 referred to insubordination. It was the only letter issued the Claimant. It related to a showdown she had with her Supervisor. Wairimu had sometime before given the Grievant instructions which she declined to perform. Wairimu conceded she referred to the Grievant as ‘a divorced woman’ in the statement of facts contained in the Statement of Reply as annexure 2. Cashier’s duties included receipt of customer clothes. Emily was not mandated to receive cash. She was not given a letter of appointment or a job description. Wairimu testified on re-examination that there was one Cashier, named Ms. Mutua. Emily opened the business at the start of the day for about 21 days when this Cashier went on leave.

13. Mwangi testified he is employed by the Respondent, and designated as a Supervisor. Emily worked as a Sorter and Packer. She was employed in the year 2000. She worked under his supervision. She was a Counter Attendant. It was not her responsibility to collect money. Mwangi described Emily has hardcore employee, who had to be forced to work. She received verbal warnings from the witness. He was not aware of any other action taken against the Grievant. She did not co-operate with her fellow employees. Mwangi was on duty on 13th October 2007. Emily was instructed to report for duty, but did not do so. The business opened at 8. 00 a.m. There was 1 hour lunch-break, and closure at 5. 00 p.m.

14. In answer to Mr. Nyumba’s questions, the witness told the Court business opened at 8. 00 a.m. and closed at 5. 00 p.m. Mwangi opened and closed his day within the same hours. Emily was dismissed on 15th September 2007. She did not respect Mwangi as her Supervisor. There were verbal warnings. Cashier was Ms. Mutua a.k.a. Wanjiku. When Eid al- Fitr day was declared, Mwangi informed the Grievant she would be left to work during the Public Holiday which fell on the following day. She was not given a hearing by her former employer before termination. She was not explained the right to be accompanied by a colleague at the hearing. Mwangi stated that he was trained for the supervisory role. He studied up to Form 2. By characterizing the Grievant as hardcore, the witness meant to say she did not co-orperate well with her co-employees. The Respondent prays for the dismissal of the Claim.

The Court Finds and Awards-:

15. This dispute was initiated under the Trade Disputes Act, Cap 234 the laws of Kenya. The dispute was reported to the Minister for Labour on 22nd November 2007. The Minister appointed an Investigator, who took the Parties’ respective submissions and came up with findings and recommendations, in a Report dated 3rd July 2008. The Investigator recommended that the Claimant’s dismissal be reduced to a regular termination, and she be paid terminal benefits. It was recommended she is paid underpayment of wages, based on the various Regulation of Wages [General] [Amendment] Orders. It was recommended she is paid for overtime worked, and finally 4 months’ salary in compensation for loss of employment. The Claimant accepted these proposals, but the Respondent did not. The Claimant then forwarded to the Respondent the Notification of Dispute, Form ‘A’, which the Respondent refused to sign. The Dispute was placed before the Court under Section 8 of the Trade Disputes Act.

16. The Court agrees with, and upholds the recommendations of the Investigator except with regard to overtime. There was no evidence presented before this Court to show that from the date she was employed, Emily worked overtime for 15 hours per week. The submission of the Claimant before the Investigator was that the Grievant reported to work at 7. 30 a.m. to 6. 00 p.m. The Respondent’s submission on the reporting time was not captured by the Investigator. The Grievant told the Court in her evidence that she reported at 7. 00 a.m., not 7. 30 as submitted by the Claimant before the Investigator. Where did the Investigator get the information that the Grievant reported at 7. 00 a.m. if this was not in the submissions of the Claimant or the Respondent? The Court did not find the position of the Claimant on hours of work consistent. The testimony of the Grievant that she worked from 7. 00 a.m. to 6. 00 p.m. from Monday to Saturday, right from her first day of employment, was unconvincing.

17. The Court however is persuaded that the claims for Notice Pay; Compensation; Service; and Underpayment of Wages, have merit. Termination was not based on valid reason. The Respondent vaguely alleged that the Grievant was insubordinate and incompatible. There were no specific and lawful instructions from a person in authority, which she was shown to have received and dishonoured. If she was asked to report on a public holiday, and failed to do, the Court is inclined to find this cannot have been lawful instructions, as employees are entitled to be off duty on Public Holidays. She would only have been present to work on a Public Holiday, on her own volition, and paid overtime pay at twice the hourly rate, for working on a Public Holiday. The Court would be oblivious to the meaning of ‘Public Holiday,’ by finding that employers, in particular private-sector non-essential service employers, can lawfully compel employees to work during such breaks, and that employees should be punished for opting not to work on legally declared Public Holidays. The Respondent did not in any case, discount the explanation by the Grievant that she was not advised to report to work on Eid al- Fitr. It was not said in what manner the Grievant was incompatible or failed to co-orperate with her co-employees. The Respondent testified Emily indeed relieved Ms. Mutua when the latter was off-duty. After the warning of 20th November 2006, the Respondent did not issue other written warnings. The warning system is sequential. There must be a first warning, second warning and final warning preceding the summary dismissal decision. The employee must be given an opportunity to rectify delinquent disposition. The warnings have a lifespan of 1 year. No written warnings were shown to have issued to Emily between 20th November 2006, and the date of summary dismissal. The Respondent referred to verbal warnings. The warning system contemplates written warnings, not verbal, unrecorded warnings. The Court is satisfied that the Grievant lost her employment unfairly, and is entitled to 4 months’ salary in compensation.

18. Underpayment of Wages is a claim clearly demonstrated by the various Regulation of Wages Order [General] [Amendment] Orders, attached to the Memorandum of Claim as appendix 19. Service Pay / Gratuity is merited under the Regulation of Wages applicable to the Laundry Industry. The claim is unaffected by Section 35 of the Employment Act 2007 which was not in force at the time of dismissal. Against these findings the Court Awards-:

[a] Termination was wrongful and unfair under Section 15 of the Trade Disputes Act Cap 234 the Laws of Kenya;

[b] The Respondent shall pay to the Grievant through the Claimant-

4 months’ salary compensation at Kshs. 36,809 .20.

1 month salary in lieu of notice at Kshs. 9,202. 30

Underpayment of Wages at Kshs. 23,937.

The Respondent shall pay to the Grievant through the Claimant the total sum of Kshs. 69,948. 50; and,

[c] No order on the costs.

Dated and delivered at Nairobi this 27th day of September2013

James Rika

Judge