[2021] KEELRC 1095 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO.1223 OF 2017

MARY PAMELA WANGA..............................................................................CLAIMANT

VERSUS

SHAMROCK (K) LIMITED.....................................................................RESPONDENT

JUDGEMENT

1. The suit herein is undefended. The firm of Wangalwa Oundo & Co. Advocates filed a notice of appointment of advocates dated 31st January, 2018. The respondent’s did not file respondent’s response to the memorandum of claim. The said memorandum of claim was filed on 28th June, 2017.

2. On several occasions the suit had been listed down for formal proof. On 30th July, 2021 the suit was fixed for hearing. Ms. Wavinya Advocate was holding brief for the claimant and Mr. Odhiambo appeared for the respondent.

3. The respondent was not ready to proceed with the matter as he claimed his witness was indisposed. He prayed for an adjournment. The claimant submitted that the respondent had never served them with their response since 27th June, 2017 when the claim was filed. The court found no good grounds to adjourn the suit or to give the respondent audience in court having never filed any response.

4. The claimant in her statement avers that she was employed by the respondent on 12th May, 2011 as an Accountant Assistant and Office Assistant. She had not been given an appointment letter. Her salary was Kshs.20000/= per month and Kshs.5000/= for additional work.

5. She says that she worked for the respondent till August, 2016. In the interim she says she went on leave in 2014 and was asked not to report to work until the respondent recalls her.

6. In May, 2016 she says that the respondent recalled her but to her shock her services were terminated on 1st August, 2016. She explains that she was not given a termination letter but was just informed by a Mr. Abdalla that her services were no longer required. She says she was not paid any terminal benefits.

7. The claimant says she wrote to the Company Director and requested for her payments but did not get any response.

8. Subsequently on 17th August, 2016 she reported case to the Labour Office and the Labour Office summoned the respondents. The respondents sent a lawyer but the Labour Office insisted the respondents had to turn up in person. The mediation with Labour Office therefore did not yield fruits and the claimant resulted to court.

9. The court has well considered the submissions by the claimant advocates and in particular the law and the cases referred thereto.

10. The claimant says she was not given a letter of employment. She was also not given a written letter of termination but alleges she was terminated orally.

Section 10 (7) of the Employment Act provides that in any legal proceedings if employer fails to produce a written contract the burden of proving or disapproving an alleged term of employment stipulated in the contract shall be on the employer.

11. The respondent did not file a response as required. The practice is as per Employment and Labour Relations Court (Procedure) Rules 2016 and there is no need to file memorandum of appearance or notice of appointment before filing the response as in the Court Procedure Act. The two can be filed simultaneously. The respondent failure to file a response is that on the facts pleaded there are no factual disputes to be dealt with. The material allegations have not been denied nor are any contrary facts introduced. The respondent advocate Mr. Odhiambo holding brief for Mr. Wangalwa appeared in court but was not given audience having never filed a response. The court takes it that there is no denial that the claimant was an employee of the respondent otherwise they would have raised an objection from when they were served with the claim on 13th July, 2017.

12. The other issue that this court would like to address is whether the respondent had valid and justifiable reasons to terminate the claimant’s employment.

13. The claimant says that when she reported to work on 1st August, 2016 a Mr. Abdalla informed her that her services were no longer required. In Section 43 of the Employment Act it is stated that in any claim arising out of a termination of a contract, the employer shall be required to prove reasons for termination and where employers fails to do so the termination shall be deemed to have been unfair within the meaning of Section 45 of the said Employment Act.

14. Section 45(2) of Employment Act also sets out that termination is unfair if employer fails to prove (inter alia) that the reason for termination is valid.

15. The respondent failed to prove that the reason for termination of the claimant’s employment was valid. There was no termination letter served on her and there was no response filed in court.

16. The next issue is whether the respondent observed procedural fairness or rules of natural justice.

Section 41 of the Employment Act provides that “subject to Section 42(1) of the Employment Act an employer shall before terminating the employment of an employee on grounds of misconduct, poor performance or physical incapacity explain to the employee in a language the employee understands the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice during this explanation.

The court has considered the cases referred by the claimant’s advocate including Civil Appeal No.293 of 2015 Co-operative Bank of Kenya Limited Versus Banking Insurance and Finance Union (K) and Samsung Electronics East Africa Limited Versus K. M. (2017) eKLRwhere it was stated that the right to be heard is delineated in Section 41 of the Employment Act.

17. The above provision was not compiled in this matter as there is no evidence by the respondent to prove the same. The respondent therefore flouted the due procedure and the law of natural justice.

Remedies

18. The claimant’s termination in the courts finding was not valid and lawful and due procedure was not followed.

19. Since the claimant’s employment was unlawfully terminated she is awarded the following remedies and the said awards are guided by Section 49 of the Employment Act.

(a) One month salary in lieu of notice Kshs.20,000/=

(b) Leave pay for 5 years Kshs.100,000/=

(c) Unpaid salary for May, June, July

and August, 2016 Kshs.80,000/=

(d) Certificate of service to be issued within 14 days.

Court finds no ground to award the other prayers.

Conclusion

20. The court find the termination of the claimant’s employment was unlawful for failure to give reasons for such termination and failure to follow procedure in accordance to Section 41 of the Employment Act and finds the said termination was not in accord with justice and equity and awards her:-

(i) one month salary in lieu of notice Kshs.20,000/=

(ii) Leave pay for 5 years Kshs. 100,000/=

(iii) Unpaid salary for May, June, July and August, 2016 Kshs.80,000/=

(iv) Certificate of service to issue within 14 days of service.

No orders as to costs.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 13TH DAY OF AUGUST, 2021.

ANNA NGIBUINI MWAURE

JUDGE

Parties

For Claimant Nyabena Alfred

For Respondent Odhiambo holding brief ………………..

Court Assistant Mamo