[2015] KEELRC 1274 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI

CAUSE NO. 700 OF 2012

(Before Hon. Justice Hellen S. Wasilwa on 4th March, 2015)

MOSES MUTINDA ……….…………………………………………………..CLAIMANT

VERSUS

AIR-KENYA EXPRESS LIMITED ….…..…………………….……..…RESPONDENT

JUDGMENT OF THE COURT

The Claimant herein Moses Mutinda filed his Memorandum of Claim on 25/4/2012 through the firm of Nyabena Nyakundi & Co. Advocates. He seeks damages for unlawful termination and payment of his termination dues.

It is the Claimant’s case that he was an employee of the Respondent from June 1987 having been employed as a Cleaner of aeroplanes and later as a towing driver whereby his salary rose to Kshs.56,713/= by January 2012 as per his Appendix 1.

The Claimant aver that his initial employment was with a company called Airkenya Aviation Limited but on the 10th April 2006 the claimant’s services were transferred to the Respondent without any change of terms and conditions of service. (Appendix 2) is the Internal Memo dated 11th April 2006 confirming the said changes.

The Claimant further avers that upon transfer of service to the Respondent, the Claimant was issued with a new contract of service for a period of 3 years as per his Appendix 3.

It was also a term of the new contract with the Respondent that all previous services and employment benefits due to the Claimant under the Airkenya Aviation Limited will be transferred to the Respondent.

Thereafter, the Claimant offered the Respondent diligent and faithful services until 7th February 2012, when the Respondent unlawfully and wrongfully terminated the Claimant from his employment.

The Claimant contends that the Respondent failed to give him any notice nor a hearing before terminating him. The Claimant further contends that the Respondent refused to pay him his dues. The Claimant then sought services of Counsel and filed this case seeking orders set out in his paragraph 9 of the claim all totaling Kshs.1,619,955. 60/=.

Respondent’s case

The Respondent filed their memorandum of reply on 28/5/23012 through the firm of Kerandi and Ondabu Advocates. They deny that the claimant had been employed by the Respondent since 1987 as an aeroplane cleaner and a towering driver earning a salary of 56,713/=.

In answer to paragraph 7 of the claim, the Respondents aver that the Claimant was not diligent or faithful in his employment as he had been given various verbal and written warnings for breach of Respondents Company Policies and Standards as per Appointment.

The Respondents also aver that the claimant was not unlawfully and/or wrongfully dismissed from his employment. It is the Respondents position that the Claimant’s contract was terminated by them by virtue of Clause 13 of the contract.

They deny summarily dismissing the Respondent and it is their position that they were not obligated to give the Claimant a notice to show cause why he should not be dismissed as required under Section 41 of Employment Act.

The Respondents further deny refusing to pay the Claimant his terminal dues and state that the Claimant is owed only Kshs.37,999. 57 and not Kshs.1,619,955. 60/=.

They also aver that the termination was not due to redundancy under Section 40 of the Employment Act 2007 and therefore severance pay is not payable to the Resplendent. They also contend that since claimant contributed to NSSF, gratuity is not payable.

They ask court to dismiss this case with costs accordingly.

Issues for determination

Upon hearing both parties issues for determination are as follows:

(i) Whether the Claimant was unfairly and unlawfully terminated.

(ii) What remedies the Claimant is entitled to if any.

On the 1st issue though in their response the Respondent had denied ever employing the Claimant Appendix 3 is proof the employment relationship between the Claimant and Respondent. The contract was to run for 3 years with effect from 4th May 2006 and this was on extension to the previous contract with Air-Kenya Aviation Limited.

This contract was renewed as there is evidence that it went on upto 2012 as evidenced from the warning letter attached by Respondent. On 7/2/2012, the Claimant was served with a termination letter. The letter indicated that:

“Clause 13 of your employment contract stipulates that the employment may be terminated by either party giving the other party one calendar months notice in writing. We request to inform you that you reemployment with Airkenya Express Limited shall be terminated on 10/2/2012.

You will receive a months salary in lieu of notice, net of your liabilities with the Airline.

We advise you to plan for your future insurance needs as Airkenya shall not maintain insurance coverage for you beyond the date of termination.

You will be required to completer the clearance check-list herewith attached, prior to our transmission of your final dues.

We thank you for your service with Airkenya Express Limited and wish you all the best in your future endeavours.

Yours faithfully,

Airkenya Express

Signed

Capt. Dino Bisleti

General Manager “

The termination letter failed to appreciate the position of the law and in particular Section 41 of Employment Act which 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.”

The Claimant was also not given any notice as envisaged under Section 35(1) of Employment Act 2007. The Claimant was terminated with effect from 10/2/2012 and the termination letter was dated 7/2/2012.

Because of failure to adhere to the law, the termination was unlawful and wrongful and amounts to as unfair termination.

Having found that the termination was unlawful the remedies the Claimant is entitled to are as follows:

Leave earned upto 10/2/2012 as

acknowledged by the Respondent Kshs.4,305. 33

1 months salary in lieu of notice Kshs.56,173/=

Salary earned upto 10//2/2012 Kshs.22,685. 2

12 months salary as compensation for

unlawful termination of employment

Kshs.12x56713 = Kshs. 680,556/=

TOTAL = 786,944. 2/=

Less statutory deductions

The claimant shall be issued with a Certificate of Service.

The Respondent shall pay costs of this suit.

It is so ordered.

Read in open Court this 4th day of March, 2015

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Wathome holding brief for Nyabena for Claimant

Manyange for Respondent