[2018] KEELRC 1051 (KLR)
The court found that the claimant was constructively and unfairly dismissed by the respondent, who failed to subject him to any disciplinary process or provide a show cause letter as required by law. The respondent did not defend the suit. The court held that the claimant was entitled to compensation for unfair...
Source-derived case information.
- Citation
- [2018] KEELRC 1051 (KLR)
- Parties
- Claimant: Mark Wafula; Respondent: Board of Management, Friends Secondary School Kibisi
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 19 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Legal Topics
- Unlawful Termination, Constructive Dismissal, Procedural Fairness, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Wafula
Claimant
Board of Management, Friends Secondary School Kibisi
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unlawfully and unfairly dismissed from employment.
- 2 Whether the claimant is entitled to compensation and terminal benefits for unfair dismissal.
- 3 Whether the claims for overtime, public holidays, and other arrears are time barred.
Ratio Decidendi
The court found that the claimant was constructively and unfairly dismissed by the respondent, who failed to subject him to any disciplinary process or provide a show cause letter as required by law. The respondent did not defend the suit. The court held that the claimant was entitled to compensation for unfair dismissal, salary arrears, service gratuity, leave pay for the last three years, and unpaid house allowance for the same period. Claims for earlier periods were time barred. The court dismissed claims for overtime and public holidays due to lack of evidence. The court awarded the claimant the maximum 12 months' salary as compensation for unfair dismissal, considering the...
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs. 220,200 with interest at court rates from the date of filing suit until payment in full.
- The respondent shall pay the costs of the suit.
Full Case Text
Judgment text and source record
60 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT BUNGOMA
CAUSE NO. 19 OF 2018
MARK WAFULA.............................................................CLAIMANT
VERSUS
BOARD OF MANAGEMENT
FRIENDS SECONDARY SCHOOL KIBISI...........RESPONDENT
JUDGMENT
1. By a statement of claim filed on 26. 2.2018, the claimant seeks the following reliefs:-
a). One months pay in lieu of notice .......................Kshs. 3,000/=
b). Twelve months compensation for unlawful termination..Kshs. 36,000/=
c). Leave pay/due …............................................Kshs. 65,769/=
d). Service gratuity …....................................... Kshs. 57,000/=
e). Salary arrears
January 1998 to August 2017…........................ Kshs. 905,160/=
f). Overtime
21 hours every week for 456 weeks.................Kshs. 143,640/=
g). Public Holidays worked …....................................Kshs.83,600/=
h). House allowance arrears
January 1998 to August 2017 ….......................Kshs. 102,600
TOTAL CLAIM ….................................. Kshs. 1,396,769/=
2. The claim is based on facts set out in the statement of claim and a witness statement of the claimant signed on 12. 2.18 and filed on 26. 2.2018.
3. The claimant was employed by the Respondent on 1. 1.98 as a night watchman to guard the Respondent's school.
4. On 23rd August 2017, the claimant was summoned to the Principal's office and suspended indefinitely for alleged absence without permission and theft of school property.
5. Claimant reported the matter to the Union on 8. 11. 2017 requesting to be reinstated in vain.
6. The claimant was not given a show cause letter nor was he called to a disciplinary hearing. He remained suspended and out of work until he filed this suit.
7. The conduct by the Respondent amounted to an unlawful and unfair constructive summary dismissal.
8. The claimant testified under oath and adopted the written statement and the documents annexed to the statement of claim as his evidence in chief.
9. The Respondent was served with the statement of claim and summons to enter appearance on 26. 2.18. The same was served on one Zipporah Wafunafu the Bursar of the school.
10. The claimant filed an affidavit of service served by Emmanuel Wanyonyi the process sever.
11. The claim is therefore undefended.
12. The claimant has proved the claims set on under paragraph 7 of the statement of claim on a balance of probabilities and the court enters for judgment in favour of the claimant as against the Respondent as follows:
a). One months salary in lieu of notice Kshs. 3,000/=
b). Three (3) years salary in lieu of leave kshs. 9,000/=
(The rest of the claim is time barred).
c). Service gratuity kshs. 57,000/=
d). Salary arrears for 3 years (the rest of the claim is time barred)
Kshs. 3,000/= x 12 months x 3 years = Kshs. 108,000/=.
e). There is no evidence to support the claim for overtime and the same is dismissed.
f). There is no evidence to support the claim in respect of public holidays worked and the same is dismissed
g). Unpaid house allowance at the rate of 15% of Kshs. 3,000/= for three years, (the rest of the claim being time barred).
( 3,000 x 15% x 12 x 3)
Kshs. 16,200/=.
Compensation
13. The claimant was suspended indefinitely and was not subjected to any form of disciplinary process. The conduct by the claimant amounted to unlawful and unfair constructive dismissal in violation of Sections 41,43 and 45 of the Employment Act 2007. The claimant is entitled to compensation in terms of Section 49 (1) (c) and 49 (4) of the Employment Act, 2007.
14. In this respect, the claimant was constructively dismissed without payment of any terminal benefits. Claimant was under paid for a long time and was owed large sums of arrear salary, including house allowance. In short, the Respondent abused the services of the claimant and engaged in unfair labour practice. Most of the claims by the claimant are time barred.
15. He has suffered immense loss and injury.
16. This is an appropriate case to award the claimant the maximum 12 months salary in compensation for the unlawful and unfair dismissal in the sum of kshs.(3,000x12) 36,000/=.
17. In the final analysis judgment is entered in favour of the claimant as against the Respondent for a sum of kshs. 220,200/=.
The amount to be paid with interest at court rates from date of filing suit till payment in full.
18. The Respondent to pay costs of the suit.
Dated at Bungoma this 28th day of September, 2018
HON. MATHEWS NDERI NDUMA,
JUDGE
EMPLOYMENT AND LABOUR RELATIONS COURT
BUNGOMA.
Appearances:-
Mr. Were for Claimant
Mr. Chrispo Aura – Court clerk.