[2022] KEELRC 1658 (KLR)

Mudonyi & 68 others v Toner Holdings Limited (Cause 1153 of 2016) [2022] KEELRC 1658 (KLR) (26 May 2022) (Judgment)

Neutral citation: [2022] KEELRC 1658 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1153 of 2016

L Ndolo, J

May 26, 2022

Between

Ezekiel Mugera Mudonyi

1st Claimant

Geoffrey Amoi

2nd Claimant

Reuben Mwaniki

3rd Claimant

Douglas Chuma

4th Claimant

Clement Shikoli

5th Claimant

Oliver Afanda

6th Claimant

Peter Ruraya

7th Claimant

Nzenge Muthui

8th Claimant

Shadrack Shikoli

9th Claimant

John Mulonza

10th Claimant

Charles Malala

11th Claimant

Zablon Mukoselo

12th Claimant

Daniel Owich

13th Claimant

Patrick Karere

14th Claimant

Kathuli Mutemi

15th Claimant

Peter Mutemi

16th Claimant

Dunstone Likabo

17th Claimant

Peter Kimwele

18th Claimant

Joshua Muema

19th Claimant

Justus Musee

20th Claimant

Nicholas Musembi

21st Claimant

Kamau Muchiri

22nd Claimant

Simon Muturi

23rd Claimant

Jared Juma

24th Claimant

John Mutinda

25th Claimant

Anthony Mulandi

26th Claimant

Jared Mose

27th Claimant

Samuel Okoyo

28th Claimant

Evanson Githoge

29th Claimant

Duncan Kimaili

30th Claimant

Douglas Lunyasi

31st Claimant

Richard Owire

32nd Claimant

Esau Madegwa

33rd Claimant

Otieno Samuel

34th Claimant

Patrick Asengi

35th Claimant

Evans Oteni

36th Claimant

Godfrey Mulama

37th Claimant

Josiah Mwatii

38th Claimant

Shadrack Musili

39th Claimant

Nelson Onchiri

40th Claimant

Edison Onyambu

41st Claimant

Aggrey Iroe

42nd Claimant

Muendo Kiilu

43rd Claimant

Abednego Kyalo

44th Claimant

Jonathan Mutua

45th Claimant

Vincent Kademi

46th Claimant

Charles Korir

47th Claimant

Daniel Mwangangi

48th Claimant

David Maina

49th Claimant

Erastus Kioko

50th Claimant

Geoffrey Were

51st Claimant

Simon Macharia

52nd Claimant

Samuel Inganga

53rd Claimant

Kelvin Muita

54th Claimant

Douglas Babu

55th Claimant

Hudson Shiziba

56th Claimant

Charles Odanga

57th Claimant

Jackson Nzomo

58th Claimant

Evans Nyambane

59th Claimant

Steven Waweru

60th Claimant

David Kimani

61st Claimant

Denis Nyabera

62nd Claimant

Richard Githaiga

63rd Claimant

Joseph Ogolla

64th Claimant

Stephen Wambua

65th Claimant

John Maina Mwangi

66th Claimant

Allan Kisala

67th Claimant

Denis Makau

68th Claimant

Samuel Momanyi

69th Claimant

and

Toner Holdings Limited

Respondent

Judgment

1. By their memorandum of claim as amended on September 23, 2021, the claimants sued the respondent for unlawful termination of employment. The respondent’s defence to the claimants’ claim is by way of a statement of response dated July 22, 2016 and filed in court on July 25, 2016.

2. The respondent did not attend the trial, in spite of due service. The matter therefore proceeded ex parte, with the 1st claimant, Ezekiel Mugera Mudonyi testifying on his own behalf and on behalf of his co-claimants. The claimants also filed written submissions. In reaching its decision, the court has taken into account the respondent’s statement of response on record.

The Claimants’ Case 3. The claimants state that they were employed by the respondent as unskilled labourers, on various dates between 2010 and 2013.

4. They claim that on August 26, 2015, they went to collect their salaries but noticed that an amount Kshs 1,000 had been deducted from each of them.

5. The claimants add that on August 27, 2015, they found a notice at the respondent’s premises indicating that all workers’ wages had been deducted to cater for National Hospital Insurance Fund (NHIF) and National Social Security Fund (NSSF) contributions. The claimants state that they had no accounts with the two statutory bodies.

6. The claimants went to complain to the site manager, Ramesh Halai who informed them that the company had made a decision to effect the deductions and anyone who was dissatisfied was free to leave the respondent’s employment.

7. The claimants aver that they were dissatisfied with Halai’s explanation, and therefore went back for another meeting on August 28, 2015. They claim that Halai refused to negotiate with them and instead called the police to lock them out of the premises.

8. The claimants further aver that on August 29, 2015, they went to work only to find the premises locked by security guards.

9. The claimants state that on August 31, 2015, three (3) notices signed by the site manager, were placed on the site gate, stating that all workers who did not agree with the deductions would be summarily dismissed.

10. The claimants reported the matter to the labour office on September 2, 2015 and a labour officer by the name Robert Ngugi wrote to the respondent asking for computation of the claimants’ dues.

11. The labour officer convened a meeting between the respondent’s site manager & project manager and five (5) representatives of the claimants.

12. On September 10, 2015, the claimants were paid for leave days for the term served only.

13. The claimants now seek compensation for unlawful and unfair termination of employment as well as terminal dues being notice pay, leave pay and severance pay.

The Respondent’s Case 14. In its statement of response dated July 22, 2016 and filed in court on July 25, 2016, the respondent states that the claimants’ employment was lawfully terminated.

15. The respondent adds that the claimants were paid all their terminal dues.

16. the respondent therefore denies the claimants’ entire claim.

Findings and Determination 17. There are two (2) issues for determination in this case:a.Whether the termination of the claimants’ employment was lawful and fair;b.Whether the claimants are entitled to the remedies sought.

The Termination 18. From the parties’ pleadings, the fact that the claimants’ employment was terminated is not a contested issue. What is in dispute is the legality of the termination. On their part, the claimants claim that they were locked out of the work place after registering their grievance regarding deduction of their salaries on account ofNHIF and NSSF.

19. Section 45 of the Employment Act provides as follows:45. (1) No employer shall terminate the employment of an employee unfairly.(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; orii.based on the operational requirements of the employer; andiii.that the employment was terminated in accordance with fair procedure.

20. In the final submissions filed on behalf of the claimants, reference was made to the decision in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR where this court stated the following:“For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination.”

21. The respondent did not bother to explain to the court the circumstances under which the claimants’ employment was terminated. Indeed, all the respondent states in its statement of response, is that the claimants’ employment was lawfully terminated.

22. I therefore find and hold that the respondent has failed to establish a valid reason for terminating the claimants’ employment as required under section 43 of the Employment Act. Further, there was no evidence that the respondent complied with the procedural fairness dictates set by section 41 of the Act.

23. For the foregoing reason, the inescapable conclusion is that the termination of the claimants’ employment was substantively and procedurally unfair and the claimants are entitled to compensation.

Remedies 24. In light of these findings, I award each claimant three (3) months’ salary in compensation. In arriving at this award, I have taken into account, the claimants’ length of service as well as the respondent’s unlawful conduct in executing the termination.

25. I further award each claimant one (1) month’s salary in lieu of notice.

26. No basis was laid for the claim for severance pay which therefore fails and is dismissed.

27. The 1st claimant, Ezekiel Mugera Mudonyi testified that the claimants were paid for days worked and leave days. These claims are therefore also without basis and are disallowed.

28. In the end, I enter judgment in favour of each claimant in the equivalent of three (3) months’ pay plus one (1) month’s payin lieu of notice, both based on the applicable pay at the time of termination. The Nairobi County Labour Officer is directed to tabulate the specific sums payable to each claimant and file a report in this court within the next sixty (60) days from the date of this judgment.

29. I award the costs of this case to the claimants.

30. Orders accordingly.

DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF MAY 2022LINNET NDOLOJUDGEAppearance:Mr. Onyango h/b for Miss Ng’etich for the claimantsNo appearance for the Respondent