[2014] KEELRC 1340 (KLR)
The court found that both claimants were unfairly terminated. The 1st claimant was placed on compulsory leave and subsequently excluded from employment without notice or hearing, violating section 41 of the Employment Act, 2007. The 2nd claimant was placed on compulsory leave due to alleged investigations, but no...
Source-derived case information.
- Citation
- [2014] KEELRC 1340 (KLR)
- Parties
- Plaintiff: Michael Kimani; Plaintiff: Cecelia Wangui Waithaka; Respondent: Ngotho Commercial Agencies Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 155 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment_for_claimants
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Constructive Dismissal, Payment in Lieu of Notice, Annual Leave Entitlement, Commission Based Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kimani
Plaintiff
Cecelia Wangui Waithaka
Plaintiff
Ngotho Commercial Agencies Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimants were unfairly terminated from employment.
- 2 Whether the claimants are entitled to payment in lieu of notice, annual leave, and 12 months' salary for unfair termination.
- 3 Whether claims for underpayment, overtime, public holidays, and self-help group contributions are valid.
Ratio Decidendi
The court found that both claimants were unfairly terminated. The 1st claimant was placed on compulsory leave and subsequently excluded from employment without notice or hearing, violating section 41 of the Employment Act, 2007. The 2nd claimant was placed on compulsory leave due to alleged investigations, but no outcome was communicated, amounting to constructive dismissal without a valid reason as required by section 43 of the Act. The claims for underpayment, overtime, public holidays, and self-help group contributions failed because the employment relationship was based on commission and the self-help group was a separate entity. The court concluded that the claimants did not...
Court Disposition
judgment_for_claimants
Orders
- Declaration that the respondent's termination of the claimants' employment was unfair.
- Respondent to pay each claimant 12 months’ gross salary at their respective last gross monthly pay.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 155 OF 2013
(Formerly Cause No.315 of 2011 at Nairobi)
MICHAEL KIMANI...............................................1ST CLAIMANT
CECELIA WANGUI WAITHAKA......................2ND CLAIMANT
-VERSUS-
NGOTHO COMMERCIAL AGENCIES LIMITED.................................. RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 17th October, 2014)
JUDGMENT
The memorandum of claim was filed on 09. 03. 2011 through Gordon Ogolla & Associates. The claimants prayed for judgment against the respondent for pay in lieu of termination notice; pay for public holidays; overtime on Saturdays; overtime on weekdays, underpayments; pay for annual leave due but not taken; refund of contributions to Ngotho Maryland Self Help Group and further claim for 12 months’ pay for unfair termination.
The respondent’s memorandum of claim was filed on 30. 03. 2012 through Karanja Mbugua & Company Advocates. The respondent stated that the claimants were not entitled to the reliefs as prayed for and the claimant’s case be dismissed with costs.
The court has considered the pleadings, the evidence and the submissions on record. The only issue for determination is whether the claimants are entitled to the reliefs as prayed for. The court makes findings as follows.
There is no dispute that the claimants were employed by the respondent and the parties agreed to payment by commission. Accordingly, the court finds that the claims and prayers with respect to underpayment will fail.
Throughout the employment relationship there was no dispute about working hours and days of work. The court finds that the claims on overtime, public holidays and Saturdays will therefore fail especially that the evidence shows that the parties agreed on payment by commissions.
The court finds that Ngotho Maryland Self Help Group was an entity separate from the respondent and the court further finds that the claims and prayers in that regard will fail.
The 1st claimant was given compulsory leave by the suspension letter on 2. 11. 2010 and was to report back to work on 30. 01. 2011. While on the mandatory leave he discovered that the respondent had written to tenants the letter dated 1. 12. 2010 conveying that the 1st claimant was no longer in the respondent’s employment. The court finds that the termination was unfair as it was without due notice and hearing as envisaged in section 41 of the Employment Act, 2007.
The 2nd claimant was required by the respondent to go on compulsory leave for 2 months on account of defective electrical cables. The outcome of alleged investigations was not communicated and the claimant filed the suit. The court finds that the claimant was entitled to consider herself terminated. In the opinion of the court the constructive termination was unfair for want of a valid reason as envisaged in section 43 of the Employment Act, 2007.
The court has considered that the claimants did not contribute to their termination in any manner, they had served with due diligence at the inception of the respondent’s business, they expected to continue in employment and the court finds that each claimant is entitled to 12 months’ gross salaries at the rate of their respective last gross monthly pay.
In conclusion, judgment is entered for the claimants against the respondent for:
The declaration that the respondent’s termination of the claimants’ employment was unfair.
The respondent to pay each claimant 12 months’ gross salaries at the rate of their respective last gross monthly pay; one month pay in lieu of termination notice and pay in lieu of annual leave as prayed for in the memorandum of claim; and the respondent to pay by 1. 12. 2014 failing interest to be payable at court rates till full payment.
The claimants to file and serve the computation of the dues in order (2) above, within 7 days, and to record the quantum on a convenient mention date.
The respondent to pay costs of the suit.
Signed, datedanddeliveredin court atNakuruthisFriday, 17th October, 2014.
BYRAM ONGAYA
JUDGE