[2018] KEELRC 1368 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 954 OF 2014

LUCY WANJIRU..........................................................CLAIMANT

- VERSUS -

SOS CHILDREN’S VILLAGE INTERNATIONALREGIONAL

TRAINING & RESOURCE CENTRE..................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 09. 06. 2014 through Paul Mungla & Company Advocates. The claimant prayed for judgment against the respondent for:

a. Declaration that the claimant’s dismissal was unprocedural, unfair and unlawful.

b. Damages as pleaded in paragraph 5 (being general damages for unfair termination; 13th cheque in terms of clause (i) of the letter of employment; end of service benefit for 2 years of service provided for under clause (i) of the letter of employment and clause 4. 3 of the respondent’s terms and conditions of service; payment in lieu of earned leave days not taken; salary arrears for 15 days worked in November 2013; certificate of service).

c. Costs of the suit and interest on prayer (b) above at Court rates from the date of judgment until payment in full.

The response to the claim was filed on 16. 07. 2014 through Ngatia & Associates. The respondent prayed for the claimant to pay it Kshs. 17, 893. 00 plus interest from 01. 09. 2013 until payment in full, dismissal of the claimant’s suit, and costs of the suit.

There is no dispute that the respondent employed the claimant from 01. 06. 2011 in the position of Administrative and Documentation Assistant on a two year renewable contract. The claimant successfully served and the contract was subsequently renewed for a 2 year tear starting 01. 06. 2013. The claimant’s 2nd term of service was terminated by the letter dated 15. 11. 2013. The termination letter sets out the previous correspondence and disciplinary hearing leading to the termination of employment. The termination was on account of refusing to obey instructions from her superiors in the organisation and showing no intention of improving her work performance. Thus the respondent had lost confidence in the respondent as its employee. The claimant’s written representations of 28. 10. 2013 and oral representation at the meeting of 07. 11. 2013 had been considered and the respondent had decided to terminate the claimant’s employment effective 15. 11. 2013.

The Court has considered the pleadings, the evidence, the submissions and all material on record.

To answer the 1st issue for determination, the Court returns that the respondent has established that it complied with the due process including a notice and disciplinary hearing as envisaged in section 41 of the Employment Act, 2007. By the letter of 18. 09. 2013, the claimant was informed about the respondent’s dissatisfaction with her work performance. The dissatisfaction included failure to put time and effort in editing and reviewing documentation before delivering them to the respondent’s head for signing off; failure to improve on how she addressed her supervisor; failure to follow instructions given to her, failure to report at work by 9. 00am; and failure to refrain from utilizing respondent’s assets for private use. The claimant replied by her letter of 18. 09. 2013 which was found insufficient and the claimant was invited to the oral meeting of 01. 11. 2013 to show-cause why she should not be summarily dismissed. At the disciplinary hearing the claimant attended with a representative as per section 41 of the Act but decided to rely on her reply of 28. 10. 2013. Thus, the Court finds that the claimant was accorded due process as per sections 41 and 45 of the Act.

To answer the 2nd issue for determination, the Court returns that as at the time of termination or dismissal, the respondent has established that the reason for termination was valid as per section 43 of the Act and the reason related to the claimant’s conduct and the respondent’s operational requirements as per section 45 of the Act. In particular the Court finds that the respondent was entitled to terminate the contract of service on account of the claimant’s refusal to obey instructions from her superiors in the organisation and showing no intention of improving her work performance. In particular at the meeting of 17. 10. 2013 the minutes show that the claimant’s communication with her supervisor Vittone Luisa had completely broken down and the claimant confirmed that she kept a distance from her supervisor and did not reply many emails by her supervisor and which had queried her performance. Further the claimant admitted that she took the respondent’s camera for use at her mother’s graduation of her sole decision and later the camera got lost so that the loss was solely attributable to her as the last person who handled it. The Claimant further admitted that her supervisor sometimes made reviews by way of editing on the menu style and grammar, the menu document being the role of the claimant to properly style and prepare in all respects. The claimant further admitted that she had been late in arriving at work and the reason was that she had been unwell but she had not notified her supervisor. Thus, in consideration of such material before the respondent as at the time of termination, the Court returns that the termination was not unfair.

To answer the 3rd issue for determination, the Court returns that the termination was not unfair in procedure and substance. The claimant is accordingly not entitled to compensation under section 49 of the Act on account of unfair termination as was alleged. The claim for notice pay will similarly fail. The claimant submitted on house allowance but as per respondent’s submissions the same was not pleaded or prayed for. In any event the parties must have agreed upon a consolidated monthly pay with an inclusive element sufficient for rent as per section 31 of the Act as there were no grievances about that throughout the claimant’s service.

To answer the 4th issue for determination the Court returns that it has been established that the loss of the camera was attributable to the claimant. Thus the respondent is entitled to recover the same from the claimant. The claimant is entitled to 9. 625 prorate leave days but the Court has considered the period the claimant was on paid but forced leave from 18. 10. 2013 to 05. 11. 2013 and returns that it is proportionate and equitable that the due leave is set off accordingly. The claimant is entitled to end of service pay per clause (i) of the contract of service and 4. 3 of the respondent’s terms and conditions of service making Kshs. 167, 760. 00 as submitted for the claimant – and the Court finds that the award was contractual and not barred under section 35 (6) of the Act (on purported account that the claimant was a member of NSSF). She is also entitled to 15 days worked in November 2013 Kshs.41, 940. 00. The claimant is also entitled to pro-rate 13th cheque for 5. 5 months served making Kshs.38, 445. 00 as submitted. Thus, the total award is Kshs. 248, 145 less the recovery of Kshs. 29, 000. 00 being recovery of value of the camera plus Kshs.11, 200 being loan admitted by the claimant advanced from respondent making a net of Kshs.209, 945. 00due to the claimant. The Court finds that the respondent’s claim to recover Kshs.10, 500. 00 SACCO loan will fail as no nexus was established to the contract of employment and the SACCO being an independent legal entity.

The Court has considered the parties margins of success and the respondent will pay the claimant’s partial costs of the suit now fixed at 50%.

In conclusion judgment is hereby entered for the claimant against the respondent for:

a. The respondent to pay the claimant a sum of Kshs.209, 945. 00by 01. 10. 2018 failing interest to be payable thereon at Court rates from the date of filing of the suit till full payment.

b. The respondent to pay 50% of the claimant’s costs of the suit.

c. The respondent to deliver the claimant’s certificate of service in 7 days from today.

Signed, datedanddeliveredin court atNairobithisFriday 27th July, 2018.

BYRAM ONGAYA

JUDGE