[2014] KEIC 4 (KLR)

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 590 OF 2012

KENYA UNION OF COMMERCIAL FOOD AND

ALLIED WORKERS …………………………………… CLAIMANT

VERSUS

MULTI Q ENTERPRISES LIMITED ……….…... 1ST RESPONDENT

JOHN KINOTI …………………………..…….. 2ND RESPONDENT

JUDGMENT

1. The Claimant The Kenya Union of commercial Food and Allied Workers brought this suit on behalf of the Grievant Miriam Wangari.

2. The Grievant was verbally employed on 10th April 2006 as a Machine Operator and was paid a consolidated salary of Kshs.16,000/= paid in two equal instalments of Kshs.8,000/= every two weeks. She joined the union thereafter.

The Grievant was a tailor using a sewing machine and reported to work at 7. 30 a.m. until 5. 30 p.m. daily.

She served the Respondent for four(4) years until her services were verbally terminated on 19th April 2010.

Reasons for termination

4. Each day the Grievant was issued with two sewing threads for the day. On 5th May 2009, the Grievant was issued with sewing thread. The Managing Director, Mr. John Kinoti, took one sewing thread from a machine operator known as Agnes and gave to the Grievant. Ms Agnes was in the washroom at the time. Upon her return Agnes confronted the Grievant on the issue of the thread and the Grievant explained what had happened. Agnes could hear none of the explanation and warned the Grievant of dire consequences.

The Grievant reported the matter to the Managing Director who came to talk to Ms Agnes and explained what had happened. This did not end the sour relationship between Agnes and the Grievant.

5. On 20th March 2010, Grievant fell ill and only returned to work on 29th March 2010.

6. On 5th April 2010, the Managing Director and Ms Agnes brought in a person claiming to be a pastor who made strange prophesies and this caused worry to the Grievant.

7. The Grievant threatened to report the matter to the police but was prevailed upon by the Managing Director not to report the matter.

8. On 19th April 2010, the Grievant’s services were terminated verbally on the ground that there were no orders forthcoming.

9. On 20th April 2010, the Grievant reported a dispute to the District Labour Officer. Conciliation process failed and the matter was eventually filed in Court.

10. The Claimant seek;

one month salary in lieu of notice in the sum of Kshs.16,000/=;

four years accrued leave days at 21 days per year in the sum of Kshs.51,692. 30;

severance pay calculated at 12 days salary per every completed year of service in the sum of Kshs.36,923/=

unpaid house allowance for 4 years calculated at 15% of the monthly salary in the sum of Kshs.9,600/=.

Total terminal benefits Kshs.114,215. 30.

11. The Claimant further seeks maximum compensation for the unlawful and unfair termination, arrears salary and costs of the suit.

The Claimant states that this was a retrenchment under Section 40 of the Employment Act, but the Respondent did not adhere to the said provisions.

The termination was therefore unlawful and unfair.

Memorandum of Reply

12. The Respondent filed a memorandum of Reply on 7/5/2012 in which it alleges that the Grievant was employed on 2nd April 2008 and not 10th April 2006 as a tailor.

That the Respondent was incorporated in April 2008 hence the Grievant could not have worked for the Respondent from 2006, a certificate of incorporation attached.

13. That the Grievant worked on basis of piece and not on full time basis. That her hours of service were therefore flexible and not fixed as alleged.

14. The Respondent therefore denies the claims for leave stating that the Grievant was not entitled. Similarly the claim for house allowance, severance pay and notice.

The Respondent states that I did not retrench the Grievant but she left work on her own volition. She did not give any notice and her abrupt departure caused the Respondent tremendous inconvenience. That this followed a quarrel with her colleague known as Agnes.

The Respondent further attributes failure of conciliation to Claimant’s failure to attend the meeting at Labour Office twice. The claim for redundancy is therefore wholly denied.

The Respondent denies ever bringing a pastor to the work place as alleged by the Grievant or at all.

The Respondent prays that this suit be dismissed with costs.

Testimony

15. The Claimant testified in support of her case and reiterated the particulars of her claim. In sum, she told the Court that she had started working for Mr. John Kinoti prior to the incorporation of the company. That she worked continuously from 10th April 2006 to 18th April 2010, when Mr. Kinoti called her and told her to go away and not return again. She was not accused of any misconduct. That she never went on leave for four years and when she asked for leave, no answer was forthcoming.

She was firm under cross examination and appeared candid and truthful in her testimony.

16. The Managing Director of the Respondent Mr. John Kinoti Murungi testified for the Respondent. He is sued as the 2nd Respondent and was the Director of the 1st Respondent Multi Q Kenya Limited.

He said that he knew the Grievant through her husband in the year 2003. The husband was a watchman at their premises.

17. The Grievant started working for him until the business went down in 2006. In February 2008, he incorporated Multi Q Enterprises Limited and re-employed the Claimant.

He denied having employed the Grievant verbally on 10th April 2006 saying he had no company then but referred her to other people for work.

He added that tailors were paid on piece work basis and had no monthly salary paid forthrightly as alleged by the Grievant.

He told the Court that the Respondent had no payslips but used petty cash vouchers. He denied that the Grievant worked from 7. 30 a.m. to 5 p.m. stating that working hours were flexible. He denied that he locked the employees in the premises overnight.

He admitted the confrontation between the Grievant and Agnes which escalated leading to the Grievant leaving work. The dispute started from sharing of sewing thread.

He also admitted that he paid the Grievant and others Kshs.200/= per day as overtime and gave them tea and bread.

He also admitted that pastors were called by the two Employees with a view to resolve their mutual dispute. This was because the Grievant alleged Agnes was a witch.

He denied ever terminating her service, insisting that she quit her employment.

Analysis

18. The dispute between the parties regards to the length of service the Grievant gave to the Respondent and the reason for the termination of employment.

The versions made by the Grievant and the Respondent are mutually destructive the Grievant alleging that the Grievant started work in 2006 and was declared redundant in 2010. Whereas, the Respondent states that the Grievant started work in 2008 and left the employment of the 1st Respondent voluntarily in 2010.

Determination

19. In terms of the Employment Act, the employer has the obligation to prepare and maintain employment records including contract of service. Payslips; leave records inter alia.

The Respondent did not keep any of such records and was therefore unable to rebut the assertion by the Grievant regarding the dates and year of 1st employment, the nature of the employment and the manner and amount of payment.

20. In this regard the Court has given the benefit of doubt to the Grievant and has come to the conclusion that she had served the 1st and 2nd Respondent for a period of four (4) years continuously. The Court has also found that the Grievant was not granted annual leave in the period of four (4) years and was not registered with the National Social Security Fund for the period and hence is entitled to severance pay for the period.

The reason for the termination of the employment of the Grievant is in Question since the versions by both are mutually destructive.

21. The Court finds and reduces the termination to a normal termination and in the circumstances finds that the Grievant is entitled to;

one month salary in lieu of notice;

severance pay at the rate of 15 days for each completed year of service.

The Court agrees that the Grievant earned Kshs.16,000/= per month payable fortnightly.

22. Accordingly the Court awards the Grievant as against the 1st and 2nd Respondents jointly and severally as follows:

Kshs.16,000/= in lieu of notice;

Kshs.51,692. 30 in lieu of leave days not taken;

Kshs.36,923/= severance pay.

The issue of house allowance has not been proven.

Total Award Kshs.104,615/=

the Respondents are to pay the Award with interest at Court rates from todate till payment in full;

the Court awards costs of the suit to the Claimant; and

a certificate of service for the four (4) years period served within 30 days from date of this judgment.

Dated and Delivered at Nairobi this 1st day of October, 2014.

MATHEWS N. NDUMA

PRINCIPAL JUDGE