[2015] KEELRC 983 (KLR)
The court found that the claimant was dismissed without being accorded a hearing or due process as required by section 41 of the Employment Act. The respondent failed to substantiate the allegations of misconduct and did not participate in the proceedings. The claimant was not given notice or paid in lieu of notice,...
Source-derived case information.
- Citation
- [2015] KEELRC 983 (KLR)
- Parties
- Claimant: Laban Mungai; Respondent: Bordar Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1632 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- AN Makau
- Legal Topics
- Unfair Dismissal, Procedural Fairness, Summary Dismissal, Compensation for Termination
- 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
Laban Mungai
Claimant
Bordar Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's dismissal was unfair, unjust, and unlawful.
- 2 Whether the respondent followed due process as required by section 41 of the Employment Act.
- 3 Whether the claimant is entitled to compensation, notice pay, and other terminal dues.
Ratio Decidendi
The court found that the claimant was dismissed without being accorded a hearing or due process as required by section 41 of the Employment Act. The respondent failed to substantiate the allegations of misconduct and did not participate in the proceedings. The claimant was not given notice or paid in lieu of notice, nor was he paid for days worked. The court held that the dismissal was unfair and unlawful, and that the claimant was entitled to compensation equivalent to three months' salary, payment in lieu of notice, salary for days worked, costs, and interest. The respondent's conduct was found to be callous and in breach of statutory and contractual obligations.
Court Disposition
Judgment for the claimant.
Orders
- The respondent to pay Ksh. 16,000 being one month in lieu of notice.
- The respondent to pay Ksh. 8,000 for days worked in May 2014.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1632 OF 2014
LABAN MUNGAI…………………………….……………CLAIMANT
VERSUS
BORDAR LIMITED………....………..………………….RESPONDENT
JUDGMENT
1. The Claimant herein Mr. Laban Mungai sought relief for his unlawful dismissal by the Respondent. He averred that he performed his duties diligently and enthusiastically. He stated he was maliciously implicated in the loss of tiles on 17th May 2014 and dismissed on 16th June, 2014. He averred the verbal dismissal was in flagrant breach of the law. He averred he was not accorded a hearing in terms of section 41. He thus sought a declaration that the dismissal was unfair, unjust and unlawful. He sought payment of one (1) month’s salary in lieu of notice, 8,000/- for days worked in June, 12 months salary compensation and General damages as well as costs of the suit.
2. The Respondent did not enter appearance or file defence in spite of service and the cause proceeded as an undefended claim. The Claimant testified on 18th March 2015 default judgment having been entered on 14th January 2015. The Claimant testified that he was employed as a Warehouse Clerk by the Respondent on 6th March 2014. He earned 16,000/- a month plus allowance of 2,000/-. He was called to a meeting on 17th May 2014 by his supervisor Mr. David Owino and the HR Manager Miss Dean. He was told cartons had been loaded at the godown by his assistant. He was accused of being responsible and he sought to see the CCTV Footage and was denied the opportunity to do so. He sought to see the General Manager but was told he was busy. He was told not to go back to work. He was not reported to the police but was asked not to go back to work. He did not understand why he was dismissed. He did not receive pay for May. No notice was given or paid. In reply to his advocates demand the Respondent stated that the Respondent would seek 71,500/- from the Claimant which was the value of the goods lost.
3. The Claimant was from all accounts unprocedurally dismissed from his employment. His contract of employment provided in Clause 8 that termination could be effected on giving a one month notice or salary in lieu of notice. Gross misconduct would attract termination without pay or notice. Unfortunately the allegations made against the Claimant were unsubstantiated. He could not be conceivably vicariously liable for a theft by another person unless it was shown he was involved. In the premises his dismissal was unfair in terms of section 41 of the Employment Act. He was entitled to notice if the Respondent had lost faith in him. He is also entitled to payment of his dues for days worked. He is entitled to pay for 17 days worked in May 2014.
4. As regards compensation section 49(1)(c) grants the Court the discretion to award compensation. One of the considerations is the conduct of the Respondent or Claimant. The Respondent was callous and for the manner of termination which was verbal and without basis I hold that a sum of Ksh. 48,000/- being equivalent to 3 months salary will suffice as compensation. The Claimant will also have costs of the suit.
5. In the final analysis I enter judgment for the Claimant against the Respondent for:
Ksh. 16,000/- being one month in lieu of notice;
Ksh. 8,000/- being for the days worked in May 2014;
Ksh. 48,000/- being 3 months compensation;
Costs of the suit;
Interest on 1), 2), and 3) above from date of Judgment till payment in full.
Certificate of service
Orders accordingly.
Dated and Delivered at Nairobi this 16th day of April 2015
NZIOKI WA MAKAU
JUDGE