[2017] KEELRC 1895 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 747 OF 2014

LUCAS ADAM LABAN CLAIMANT

V

UKWALA SUPERMARKETS (NAKURU) LTD RESPONDENT

JUDGMENT

1. The Court is called upon to determine the questions, whether Lucas Adam Laban (Claimant) was employed by Ukwala Supermarkets (Nakuru) Ltd (Respondent) as a general worker or Shop Assistant, whether the Claimant worked overtime, whether the Claimant’s employment was unfairly terminated, whether the Claimant’s contributions to the National Social Security Fund were remitted, whether the Respondent offered the Claimant service charge and appropriate remedies.

2. The Cause was heard on 12 October 2016 and 21 November 2016 after which the Claimant filed his submissions on 14 December 2016. The Respondent’s submissions were filed on 20 January 2017.

3. The Court has given due consideration to the pleadings, evidence and submissions.

General worker or Shop Assistant

4. It is not disputed that the employment relationship between the Claimant and Respondent started in 2006. It is also not disputed that the Claimant was issued with a Confirmation Letter dated 1 January 2009.

5. Apart from the Confirmation Letter, the parties did not provide any formal contract indicating the designation or duties the Claimant was carrying out.

6. During testimony, the Claimant stated that he was a Shop Assistant but he did not disclose the duties he was carrying out on a day to day basis. That disclosure would have made it easier for the Court to determine the question of occupation.

7. Prior to the Employment Act, 2007, there was no statutory requirement imposed upon an employer to issue a written contract of employment outlining the particulars prescribed in section 10 of the Employment Act, 2007.

8. However, a Shop Assistant has been defined in the Regulation of Wages (Wholesale and Retail Distributive Trades) Order to meanany person wholly or mainly employed for the purpose of transacting business with customers in a department of an undertaking to which customers have access but who is not in charge of such a department.

9. In the instant case, the Claimant did not disclose what his day to day duties were, and even assuming that the Respondent is involved in Wholesale and Retail Redistributive Trade, the Court declines to find that he was a Shop Assistant. It is more probable that he was a general worker.

Overtime

10. The Claimant testified that he would report to work at 8. 00am and leave at 9. 00pm and that he worked 6 days in a week. Sometimes, he would work during Sundays from 8. 30am to 8. 00pm and also during public holidays without payment of overtime.

11. Various Regulation of Wages Orders have prescribed working hours during the week above which an employee qualifies to be paid overtime.

12. The Claimant did not disclose the particular Regulation of Wages Order which prescribed the working hours in the industry he was employed.

13. To rebut the overtime claim, the Respondent’s Administration Manager testified that the Claimant worked 12 hours per day and that he was paid overtime. He also produced as a bundle, copies of the Claimant’s pay slips from 2009 to 2014.

14. The pay slips indicate that the Claimant was being remunerated for overtime work.

15. On the strength of the pay slips, the Court finds that any overtime worked by the Claimant was paid.

Contributions to NSSF

16. Although the Claimant pleaded that the Respondent did not remit his NSSF contributions, the Respondent produced a Provisional Member Statement of Account for the years 2005 to 2014 indicating that the monthly contributions were remitted to the National Social Security Fund.

Unfair termination of employment

17. The Respondent pleaded that the Claimant absconded from work while its witness testified that the Claimant voluntarily left employment after returning his uniform on 6 September 2014 and when asked for a reason, the Claimant responded that he was going to serve the Lord.

18. The witness stated that soon thereafter, the Respondent received a demand letter dated 15 September 2014 (produced).

19. The Claimant on his part asserted that he was dismissed on 1 September 2014 after resuming duty after taking 2 days off.

24. The Court has considered the position advanced by the Respondent and noted that there is an inconsistency between the pleaded case and the fact(s) disclosed during testimony.

21. The Court has also taken note that the Claimant caused a demand letter to be sent to the Respondent immediately around the time of separation in which the substance of complaint was unfair termination of employment.

22. The Court is inclined to accept the version of separation as contended by the Claimant, and because there was no suggestion of compliance with the requirements of sections 35 and 41 of the Employment Act, 2007, returns a verdict of unfair termination of employment.

23. If by any chance the Claimant absconded duty, that would have amounted not only to a misconduct but a breach of a fundamental obligation arising out of the contract of employment which would have implicated section 44(4) of the Employment Act, 2007 as read with section 41(2) of the Act.

24. Even if such were the case, and based on the material placed before the Court, the verdict would have been one of unfair termination of employment.

Offer of service charge

25. If at all, the Respondent offered the Claimant Kshs 16,000/- on account of service charge, the Claimant has not laid any evidential, contractual or legal basis upon which the Court would order the Respondent to pay him the same after rejecting the same.

Appropriate remedies

Pay in lieu of Notice

26. With the finding that there was unfair termination of employment, the Claimant is entitled to 1 month pay in lieu of notice (basic wage at separation was Kshs 9,024/-).

Compensation

27. Compensation is a discretionary remedy and the factors the Court ought to consider have been set out in section 49(4) of the Employment Act, 2007.

28. The Claimant served the Respondent for about 9 years and in consideration of the length of service, the Court is of the view that the equivalent of 10 months gross wages (gross wage in August 2014 was Kshs 17,233/-) would be appropriate and fair.

Service pay/ Overtime

29. Having been a contributor to the National Social Security Fund, the Claimant is not entitled to service pay, by dint of section 35(5) and (6) of the Employment Act, 2007.

30. Claim for overtime is not merited.

Conclusion and Orders

31. The Court finds and holds that the employment of the Claimant was unfairly terminated and awards him and orders the Respondent to pay him

i. 1 month pay in lieu of Notice Kshs 9,024/-

ii. Compensation Kshs 172330/-

TOTAL Kshs 181,354/-

32. Other heads of relief are dismissed.

33. Claimant to have costs.

Delivered, dated and signed in Nakuru on this 27th day of January 2017.

Radido Stephen

Judge

Appearances

For Claimant Mr. Kanyi instructed by Kanyi Ngure & Co. Advocates

For Respondent Mr. Murimi instructed by Murimi, Ndumia, Mbago & Muchela Advocates

Court Assistants Nixon/Daisy