[2017] KEELRC 1701 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS

COURT ATNAIROBI

CAUSE NO. 392 OF 2015

(BEFORE HON. LADY JUSTICE HELLEN S. WASILWA ON 28TH FEBRUARY, 2017)

MOSES KARUTI M’IMUNYA………………………….…....…CLAIMANT

VERSUS

GLOBAL ENVIRONMENTALSOLUTIONS LIMITED …..RESPONDENT

JUDGMENT

1. The Statement of Claim dated 5th March, 2015 was filed by the claimant through Simon Nzioka Advocate stating the following as issues in dispute:

1. Unlawful/unfair dismissal of the Claimant from work; and

2. Failure by the Respondent to pay the Claimant his terminal dues and benefits.

2. The Claimant’s case is that the Claimant was employed as a Machine Operator by the Respondent on 7th October 2009 based on an oral agreement which was later formalized on April 2012.

3. The Claimant submits that he served the Respondent with loyalty and diligence under difficult times until 15th October 2013 when the Respondent wrongfully and unfairly terminated his services without a proper legal notice, without any explanation and or following the due process of law.

4. The Claimant submits that he views and believes that the purported termination of his employment was not justifiable and or reasonable under the law and hence the same is unlawful/unfair/illegal and a violation of his fundamental rights and holds the Respondent wholly liable.

5. The Claimant further submits that during their employment relationship the respondent failed to comply with the dictates of the Employment Laws in the following ways:

1. The Respondent did not allow the Claimant to take his annual leave and did not pay for leave not taken.

2. The Respondent did not provide the Claimant with an allowance to cover his housing needs nor did it provide him with housing.

3. The Respondent did not remit monthly contributions to NSSF and NHIF to cover the Claimants pension gratuity and health insurance contrary to the law.

6. The Claimant finally submits that upon the said termination, the Respondent refused to fulfill the statutory requirements as mandated by the Employment Act, 2007 with respect to the claimant’s entitlements as it refused and/or neglected to pay the Claimant dues as computed above.

7. The Claimant prays for the following:

1. The sum of Kshs. 210,534/= as particularized in paragraph 11 of the claim.

2. Kshs. 168,000/= being 12 months’ salary as compensation for unfair, unlawful and unprocedural termination.

3. Interests on (1) above.

4. Costs of this suit.

5. Any other relief as the Court may deem just.

8. The Respondents on the other hand did not file their response to the claim.

9. From the Claimant’s Statement of Claim and documentary evidence of an employment agreement dated 1st April 2012, salary vouchers and a demand letter presented before me, there is proof of the existence of an employment relationship between the Claimant and the Respondent. There is an employment contract detailing how the relationship started but it is not clear how it terminated.

10. The law is clear on the procedures to be used to end an employment relationship. Section 41 of Employment Act 2007 states as follows:

“(1) Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the 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 present during this explanation.

(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make”.

11. Section 43 of the Employment Act 2007 on the other hand state as follows:

1. ..“In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.

2. The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

12. The above processes were never followed and so by virtue of section 45(2) of the EA 2007 which states as follows:

2. “A termination of employment by an employer is unfair if the employer fails to prove:

a. that the reason for the termination is valid;

b. that the reason for the termination is a fair reason:-

i. related to the employee’s conduct, capacity or compatibility; or

ii. based on the operational requirements of the employer; and

c. that the employment was terminated in accordance with fair procedure.

13. The termination of the claimant was unfair and unjustified.

14. I also find that the Respondent failed to pay the Claimant his terminal dues and benefits as provided under section 49 of the Employment Act.

15. It is for this reasons that I award his prayers and order that the Respondent pay the Claimant as follows:-

1. I months salary in lieu of notice Kshs 14,000

2. NSSF dues not remitted Kshs 19,200

3. Accrued leave 48,534

4. House allowance not paid for 4 years 100,800

5. Kshs. 168,000/= being 12 months’ salary as compensation for unfair, unlawful and unprocedural termination.

TOTAL Khs. 350,534 less statutory deductions

6. Interests on (1) above.

7. Cost of the suit.

16. Those are the orders of the Court

Read in open Court this 28th day of February 2017

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Mrs. Akwara holding brief for Nzioka for Claimant – Present

No appearance for Respondent