[2018] KEELRC 1305 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 90 OF 2016

(Before Hon. Lady Justice Maureen Onyango)

LILIAN BII CHELANGAT.........................................................CLAIMANT

-VERSUS-

BOARD OF MANAGEMENT

NYARIACHO MIXED SECONDARY SCHOOL.............RESPONDENT

JUDGMENT

By memorandum of claim dated 6th April 2016 and filed on 7th April 2016 the claimant avers that her employment was unfairly terminated by the respondent. She prays for judgment against the respondent as follows –

a) A declaration that the decision to terminate the claimant’s employment in January 2016 summarily was unconstitutional, improper, illegal and/or wrongful and the respondent be compelled to reinstate the claimant to her employment.

b) That in the alternative the respondent be ordered to pay the claimant –

i) Leave allowance for one year 2015

ii) Termination dues

iii) A sum total of Kshs.73,825/- being the sum of underpaid wages at monthly underpayment of Kshs.6,152. 50 as per wage guidelines from the Minster for Labour, Social Security and Services.

iv) Interest therein at court rates.

c) Costs of this suit.

d) Any other relief this court deems fit to grant.

The respondent was properly served and acknowledged service but did not either enter appearance or file defence to the memorandum of claim. The respondent was also served with hearing notice but did not attend court for hearing.

The claimant testified that she was first employed by the respondent on a three months’ contract by the Board of Management of the respondent school as an accounts clerk. Her salary was shs.7,000 per month. She was confirmed on full time basis and worked until September 2014 when her employment was stopped. She complained to the Board of Management Chairman and her employment was reinstated by letter dated 17th February 2015 and she was paid two months’ salary for the period she was out of employment.

The claimant testified that she worked until 7th January 2016 when she was issued with a letter summoning her to appear before the Executive Committee of the Board on 8th January 2016. After appearing before the Board she received a letter of termination dated 8th January 2016.

The claimant testified that she had not been given any warning. She prayed for payment of notice, underpayments and payment for the period she was out of employment. She further testified that she did not take leave and prayed for pay in lieu of annual leave.

Determination

The claimant’s testimony is undefended and therefore uncontroverted. For termination of employment to be fair there must be valid reason. In the present case although the claimant was given a hearing before the Board and although the termination of her employment was not due to any fault on her part, the reason for termination as given in the letter of termination was not valid. The letter of termination gives the reason for termination as follows –

“Our Ref: ……………………... Date: 8/1/2016

Your Ref: …………………….

RE: LILIAN CHELANGAT B.

Dear Lilian

Following your appearance before the Executive Board of Management on 8/1/2016 your services in the school are terminated forthwith. The decision was necessitated by a letter by the Sub County Director of Education dated 20th February 2015 advising the then BOG not to employ additional workers in line with the Ministry of Education guidelines. Equally the BOM could not get any documents supporting your employment in the school.

Please comply.

SIGNED

Catherine Wanja Njagi

Principal/Secretary/BOM/P.A

CC

BOM Chairperson Nyariacho Secondary School

Sub County Director of Education Masaba North

County Director of Education, Nyamira”

According to the claimant’s letter of appointment, she was interviewed before employment and the reinstatement after she initial termination was by the Board. I find that the termination of her employment was unfair and declare accordingly.

Remedies

The claimant testified that she did not take leave for the year she was in employment. I award her one-month’s annual leave at 21 days. I further award her notice as her termination was without notice. The claimant further prayed for underpayments.

According to the Regulation of Wages (General) Order 2015, the minimum salary for an account clerk under all other areas was kshs.13,152. 50 per month. Including house allowance of 15% the claimant’s salary should have been Kshs.15,125. 40. She was therefore underpaid by (15,125. 40 – 7,000) shs.8,125. 40 per month. For 12 months the underpayment was shs.97,504. 50. I therefore award the claimant the following –

(i) Notice Kshs.15,125. 40

(ii) 21 days leave Kshs.10,623. 20

(iii) Underpayments Kshs.97,504. 50

TOTAL KSHS.123,253. 10

The claimant is also entitled to costs. The decretal sum will attract interest at court rates from date of judgment.

DATED AND SIGNED AT NAIROBI ON THIS 4TH DAY OF JULY 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED AT KISUMU ON THIS 30TH DAY OF JULY 2018

MATHEWS NDERI NDUMA

JUDGE