[2017] KEELRC 682 (KLR)
The court found that the termination of the grievants for refusing to sign short term contracts was not a valid reason and did not follow fair procedure, thus violating sections 41, 43, and 45 of the Employment Act, 2007. The claims for terminal benefits, gratuity, arrears for underpayment, payment in lieu of...
Source-derived case information.
- Citation
- [2017] KEELRC 682 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Education Institutions Hospitals and Allied Workers (KUDHEIHA); Respondent: Board of Governors Wangunyu High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2019 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment_for_claimant
- Legal Topics
- Unfair Termination, Employment Contracts, Terminal Benefits, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Union of Domestic, Hotels, Education Institutions Hospitals and Allied Workers (KUDHEIHA)
Applicant
Board of Governors Wangunyu High School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the grievants' employment for refusing to sign short term contracts was unfair and unlawful.
- 2 Whether the grievants are entitled to terminal benefits, gratuity, arrears for underpayment, payment in lieu of notice, and compensation for unfair termination.
Ratio Decidendi
The court found that the termination of the grievants for refusing to sign short term contracts was not a valid reason and did not follow fair procedure, thus violating sections 41, 43, and 45 of the Employment Act, 2007. The claims for terminal benefits, gratuity, arrears for underpayment, payment in lieu of notice, and compensation for unfair termination were proved on a balance of probability. The respondent's failure to file a response left the claims uncontroverted. The court awarded each grievant compensation based on their period of service and ordered payment of the specified sums, interest, and costs.
Court Disposition
judgment_for_claimant
Orders
- Judgment entered in favour of the claimants as prayed, except that the award in lieu of notice is limited to one month.
- Michael Mutua Matheka awarded Kshs.58,959.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 2019 OF 2011
KENYA UNION OF DOMESTIC, HOTELS, EDUCATION INSTITUTIONS
HOSPITALS AND ALLIED WORKERS KUDHEIHA...................CLAIMANT
VERSUS
BOARD OF GOVERNORS WANGUNYU HIGH SCHOOL...RESPONDENT
Mr. Walter Siembo for claimant
JUDGMENT
1. The suit was filed on 30th October 2011 by a memorandum of claim by the claimant on behalf of the four grievants Paul Kanyoro, a cook; Antony Thairu, gatekeeper; Michael Mutua Matheka and John Jaaga, Lab assistant.
2. On 4th December 2009, the four grievants were given a letter of termination for refusing to sign a contract. This was said to be insubordination and they were all sent home.
3. They had served six (6) months probation and expected to be confirmed in their positions.
4. The grievants were not registered with NSSF and seek payment of gratuity for the period served.
5. They also claim payment of arrear salary in respect of underpayments contrary to the general wage order for the period they served.
6. They also seek payment in lieu of notice and compensation for unlawful termination of employment.
7. This respondent did not file a memorandum of response to the claim.
8. The claims remain uncontroverted therefore.
9. Mr. John Jaaga Chege testified under oath in support of the claims for the four grievants.
10. The court finds that the claims for payment of terminal benefits have been proved on a balance of probability and enters judgment in favour of the grievants as prayed except that the award in lieu of notice is limited to the statutory one month.
11. With regard to the claim for compensation in terms of section 49 (1) (c) of the Employment Act, 2007, claimant has established on a balance of probability that the grievants were wrongly and unfairly terminated from employment for refusing to sign short term contracts.
12. This was not a valid reason to terminate their employment. The termination did not follow a fair procedure also. The termination violated sections 41, 43 and 45 of the Employment Act, 2007.
13. Paul Kanyoro had served one year and the court awards him one (1) month’s salary as compensation. Michael Mutua Matheka had served one year and the court awards him one month’s salary as compensation. Antony Thairu Kamau had served three years and the court awards him three (3) months salary as compensation.
14. John Jaaga Chege had served one year and the court awards him one month’s salary compensation.
15. In granting the compensation, the court has considered that the four lost their job under similar circumstances and were not paid any terminal benefits. They suffered loss and damage pursuant to the loss of job. They intended to continue working but the employment was prematurely curtailed to their loss and detriment. The court has also considered their period of service.
16. In the final analysis judgment is entered in favour of the claimants as follows;
(i) Michael Mutua Matheka - Kshs.58,959
(ii) John Jaaga Chege - Kshs.64,399
(iii) Antony Thairu Kamau - Kshs.77,108
(iv) Paul Kanyoro - Kshs.58,959
Total award - Kshs.259,425
(v) Interest at court rates from date of filing suit till payment in full except award of compensation in respect of which interest is from date of judgment.
(vi) Costs to follow the outcome.
Dated, signed and delivered at Nairobi this 29th day of September 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE