[2017] KEELRC 1464 (KLR)
The court found that the grievant's employment was terminated without notice or valid reason, contrary to section 43 of the Employment Act, 2007. The respondent failed to defend the claim or provide any justification for the termination. The court accepted the claimant's evidence regarding the grievant's entitlement...
Source-derived case information.
- Citation
- [2017] KEELRC 1464 (KLR)
- Parties
- Applicant: Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI); Respondent: The Board of Management, St. Peters Sang’alo Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Cause 101 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Grievant reinstated and awarded compensation for unlawful termination. Each party to bear own costs.
- Judges
- DKN Marete
- Legal Topics
- Unfair Termination, Salary Underpayment, Employment Benefits, Reinstatement, Compensation for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI)
Applicant
The Board of Management, St. Peters Sang’alo Secondary School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the employment of the claimant was wrongful, unfair and unlawful.
- 2 Whether the claimant is entitled to the reliefs sought.
- 3 Who bears the costs of the cause.
Ratio Decidendi
The court found that the grievant's employment was terminated without notice or valid reason, contrary to section 43 of the Employment Act, 2007. The respondent failed to defend the claim or provide any justification for the termination. The court accepted the claimant's evidence regarding the grievant's entitlement to salary, allowances, and benefits as per the Ministry of Education circular. The absence of a defence and the failure to follow due process rendered the termination unlawful. Consequently, the court ordered reinstatement of the grievant without loss of benefits and awarded compensation equivalent to twelve months' salary for unlawful termination.
Court Disposition
Claim allowed. Grievant reinstated and awarded compensation for unlawful termination. Each party to bear own costs.
Orders
- The grievant is reinstated to employment without loss of benefits, promotion or emoluments.
- The grievant is ordered to report back to work on 22nd February, 2017 at 8:00 hours.
Full Case Text
Judgment text and source record
59 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT KERICHO
CAUSE NO. 101 OF 2016
(Before D. K. N. Marete)
KENYA UNION OF EMPLOYEES OF POLYTECHNICS,
COLLEGES AND ALLIED INSTITUTIONS – (KUEPCAI).......……...............................................................................CLAIMANT
VERSUS
THE BOARD OF MANAGEMENT,
ST. PETERS SANG’ALO SECONDARY SCHOOL.................................................................................................RESPONDENT
JUDGEMENT
This matter was originated by way of a Memorandum of Claim dated 26th May, 2016. The issue in dispute is therein cited as;
“Unfair and unlawful termination of employment services of Ms. Jesca Musuya Madete”
This claim is not defended, or at all. This is despite numerous services to the respondent.
The claimant case is that the grievant, one, Jesca Musuya Madete was employed by the respondent on 6th July, 2008 as Cateress/Matron at a salary of Kshs.2,800. 00 per month.
It is the claimants other case that the grievant was entitled to salary
increments as follows;
4. THAT, according to the Ministry of Education circular titled “Secondary schools – Schools Accounting Policies” as envisaged under “ Personal Emolument Vote Head” the Grievant herein ( Ms Jescah Musuya Madete) deserved categorized at “Job Group G” and each a Basic Starting Salary of Kshs.11,518,00/=, Housing Allowance at Kshs.2,300/= and Medical Allowance on monthly basis at Kshs.750. 00/= that qualifies a gross monthly salary of Kshs. 14,568. 00/=, and was also entitled to an annual leave allowance in a year at Kshs.4,000. 00/=. “Annexed hereto and marked “KUEPCAI-4” is a copy of the circular.
The claimants further case is that the grievant’s employment was unfairly terminated by the respondent on 20th June, 2014 and efforts to resolve this through a conciliator have failed.
She prays as follows:
a) Unpaid salary and allowances
June 2014
11,518. 00 + 2,300. 00 +750. 00 Kshs.14,568. 00
b) Salary underpayment for 6 yrs
(i) July,2008 – August, 2010
14,568. 00 – 2,800. 00 x 26 months Kshs.305,968. 00
(ii) 14,568. 00 – 2,800. 00 x 30 months Kshs.353,040. 00
(iii) 14,568. 00 – 2,800. 00 x 16 months Kshs.188,288. 00
c) Unpaid House Allowance
2,300. 00 x 80 months Kshs.184,000. 00
d) Unpaid medical Allowance
750. 00 x 80 months Kshs.60,000. 00
e) Accumulated Annual Leave
14,568. 00 x 21 days x 8hrs x 6yrs Kshs.84,734. 00
173. 33 A.H.P.A
f) Severance pay
14,586. 00 x 15days x 8hrs x 6yrs Kshs.60,524. 00
173. 33 A.H.P.A
g) Compensation for unfair Termination
14,568. 00 x 12 months Kshs.174,816. 00
TOTAL AMOUNT DUE PAYMENT Kshs.1,425,539. 65
The issues for determination therefore are;
1. Was the termination of the employment of the claimant wrongful, unfair and unlawful?
2. Is the claimant entitled to the relief sought?
3. Who bears the costs of this cause?
The claimant at the onset establishes a case of termination of employment. In her written submissions dated 6th February, 2017, the claimant submits a case of there having been no notice of termination of hearing from the respondent to the claimant. Again, the purpoted letter of termination did not
in any way, indicated the reasons or cause of termination as stipulated in the mandatory terms of section 43 of Employment Act, 2007. In the absence of a defence, I find a case of unlawful termination of employment of the grievant by the respondent. This answers the 1st issue for determination.
The 2nd issue for determination is whether the claimant is entitled to the relief sought. She is. Having sailed through a case of unlawful termination of employment, the claimant is entitled to the relief sought.
I am therefore inclined to allow the claim and order relief as follows;
i. That the grievant be and is hereby reinstated to employment without loss of benefits, promotion or emoluments.
ii. That the grievant be and is hereby ordered to report back to work on 22nd February, 2017 at 800 hours.
iii. That respondent be and is hereby ordered to pay twelve (12) month’s salary as compensation for unlawful termination of employment to the claimant – Kshs.14,568. 00 x 12 months =Kshs.174,816. 00
iv. The parties shall bear their costs of the claim.
Delivered, dated and signed this 21st day of February 2017.
D.K.Njagi Marete
JUDGE
Appearances
1. Mr. Japheth Anyira Agura for the Claimant Union.
2. No appearance for the respondent.