[2018] KEELRC 2299 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO. 657 OF 2016

MWARUA YAWA NZAO.....................................1STCLAIMANT

TABITHA TABU MAGIO...................................2NDCLAIMANT

MARK KIMUTAI.................................................3RDCLAIMANT

PHILIP MALUKI.................................................4THCLAIMANT

LUCAS GIMASE..................................................5THCLAIMANT

BENEDICT MWANURYA...................................6THCLAIMANT

HALUWA CHARO...............................................7THCLAIMANT

ROBERT KAZUNGU...........................................8THCLAIMANT

KAHINDI PETER.................................................9THCLAIMANT

GEORGE OMBOGO..........................................10THCLAIMANT

ANDREW MUTENGO.......................................11THCLAIMANT

MARY BOKE NYAHIRI....................................12THCLAIMANT

CANICUS MWITA JOSEPH.............................13THCLAIMANT

MBARU MWANYAMBA....................................14THCLAIMANT

MICHAEL YAA NGOKA...................................15THCLAIMANT

TOM KERARIU MICHAEL..............................16TH CLAIMANT

GABRIEL CHACHA...........................................17TH CLAIMANT

FURAHA CHARO MENZA ..............................18TH CLAIMANT

SAMUEL NYAHILI NCHORE..........................19TH CLAIMANT

GRACE OTIENO MBEJA .................................20TH CLAIMANT

VERSUS

BABS SECURITY SERVICES LIMITED..............RESPONDENT

JUDGMENT

1. The Claimants were employed by the Respondents on diverse dates between January 2013 and October 2015 and worked until 14. 1.2016 when their services were terminated on account of redundancy without any prior notice. It is the Claimants' case that the redundancy was unlawfully done and it amounted to unfair termination of their employment. They have therefore brought this suit claiming one month salary in lieu of notice, compensation for unfair termination, salary underpayment, service pay, gratuity, accrued leave and public holidays worked, salary for December 2015 and January 2016, costs and interest.

2. The Respondent never entered appearance and as such, the suit proceeded exparte by way of formal proof on 27. 9.2017 when the 5th testified for Claimants as CW1 and adopted the written witness statement by the first Claimant as his testimony. Thereafter the Claimants filed written submissions, which I have carefully considered herein.

Claimants' case.

3. CW1 testified that he was employed by the Respondent as a security guard from November 2013 and his salary was Kshs.6000. He furthertestified that all the other Claimants were also employed as security guards for the same salary of Kshs.6000 per month. On 14. 1.2016 CW1 and the other Claimants reported to work at their places of assignment as usual but they found instructions from the Respondent that they should go home because she had closed her operations. The following day the Claimants called their boss to verify the instructions and they were told that the outsourcing contract had lapsed and she had closed the Mombasa office.

4. CW1 contended that the termination was unfair because no prior termination notice was served upon them and they were not paid their accrued benefits under their contract of employment. He therefore prayed for the reliefs sought in the suit contending that all the Claimants had their salary underpaid during their employment and prayed for payment of the arrears. He further contended that as at the time of the termination, all the Claimants had not yet been paid their salary for December 2015 and January 2016.

5. The first Claimant echoed the testimony by the CW1 that the Claimants were employed by the Respondents until 14. 1.2016 when they found that their employment had been terminated without prior notice and the Respondent's Mombasa offices closed. He further stated that as at the time of the termination, the Claimant had not yetbeen paid their salary for December 2015 and January 2016. He clarified that the Respondent's Head office at Nairobi was still operational.

Analysis and Determination

6. There is no dispute that all the Claimants were employed by the Respondent as security guards and posted to various assignments in Mombasa until 14. 1.2016 when they were terminated following closing the Respondent's Mombasa office. The issues for determination arising from the material presented to the Court are:

a) Whether the termination of the Claimants' contract of service was unfair; and

b) Whether the Claimants are entitled to the reliefs sought.

Unfair termination.

7. Under Section 45(2) of the Employment Act, termination of employment contract by the employer is unfair if he fails to prove that it was grounded on a valid and fair reason and that it was done after following a fair procedure. In this case, the reason for the termination was redundancy and the procedure followed was sudden termination without prior notice and payment of accrued terminal benefits. The reason for the termination has not been contested by the Claimantswho stated that they were informed by their bosses that theoutsourcing contract had lapsed and when they visited the Respondent's Mombasa office they found that it was indeed closed. Consequently, I find that the Respondent had valid reason to terminate the services of the Claimants due to her operational requirements.

8. The Claimants have however taken issue with the procedure followed and I agree with them that the procedure followed before their lay off was unfair. It is also clear from the facts of the case that the mandatory procedure for terminating employment contract on account of redundancy prescribed by section 40 of the Employment Act was not complied with in this case. The said provision requires in mandatory terms that before terminating the services of an employee on account of redundancy, the employer shall first serve the employee (or his trade union) and Labour officer with at least one month written notice, followed by fair selection process, then payment of salary in lieu of notice, accrued benefits plus severance pay to the employees selected for the redundancy. The failure to comply with the said mandatory procedure rendered the termination of the Claimants' services unfair within the meaning of section 45 of the Act, and I so hold.

Reliefs

9. The Claimants have prayed for one month salary in lieu of notice, compensation for unfair termination, salary underpayment, service pay, gratuity, accrued leave and public holidays worked, salary for December 2015 and January 2016.

Notice and compensation for unfair termination

10. In view of the finding herein above that the services of the Claimants were unfairly terminated, I proceed to award each of them one month salary in lieu of notice plus compensation of 6 months' salary under section 49 and 50 of the Act. In awarding the said small compensation, I have considered the fact that the Claimants worked for the Respondents for a fairly short period and also the fact that they never contributed to their termination through misconduct. The award will be based on the minimum wage published vide Legal Notice No.117 of 2015 being kshs.12221 as prayed.

Underpayment and the unpaid salary

11. There is no dispute that the Claimants were earning between Kshs.6000 gross salary per month. Considering the minimum wages published vide Legal notice No.197 of 2013 and Legal Notice No. 117 of 2015, it is obvious that the Respondents did underpay all the Claimants' their rightful salaries as demonstrated by pleadings,evidence, and submissions. I therefore allow the claim for the salary arrears occasioned by the said underpayment to each Claimant. In addition, I award the claim for salary for December 2015 and 14 days worked in January 2016.

Service pay and gratuity

12. The claim for service pay is also granted at the conventional rate of 15 days pay per completed year of service. The claim for gratuity is however dismissed for lack of legal or contractual basis.

Accrued leave & public holidays

13. The Claimants evidence that they never went for annual leave has not been contested. However, I only allow one year's leave because the Claimants never proved that they had permission to accumulate leave. However, the claim for the public holidays worked is dismissed for want of particulars and evidence.

14. The summary of award for each claimant is as follows:

Mwarua Yawa Nzao Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 174,200. 00 Leave Kshs. 12,221. 00 Service pay Kshs. 18,332. 50 Kshs. 308,633. 00 Tabitha Magio Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 174,200. 00 Leave Kshs. 12,221. 00 Service pay Kshs. 18,332. 50 Kshs. 308,633. 00 Mark Kimutai

Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 174,200. 00 Leave Kshs. 12,221. 00 Service pay Kshs. 18,332. 50 Kshs. 308,633. 00 Philip Maluki Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 174,200. 00 Leave Kshs. 12,221. 00 Service pay Kshs. 18,332. 50 Kshs. 308,633. 00

Lucas Gimase Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 127,701. 90 Leave Kshs. 12,221. 00 Service pay Kshs. 12,221. 00

Kshs. 256,024. 40

Benedict Mwanarua Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 127,701. 90 Leave Kshs. 12,221. 00 Service pay Kshs. 12,221. 00 Kshs. 256,024. 40 Haluwa Charo Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 127,701. 90 Leave Kshs. 12,221. 00 Service pay Kshs. 12,221. 00 Kshs. 256,024. 40

Robert Kazungu Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 127,701. 90 Leave Kshs. 12,221. 00 Service pay Kshs. 12,221. 00 Kshs. 256,024. 40 Kahindi Peter Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 127,701. 90 Leave Kshs. 12,221. 00 Service pay Kshs. 12,221. 00 Kshs. 256,024. 40 George Ombogo Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 115,259. 90 Leave Kshs. 12,221. 00 Service pay Kshs. 12,221. 00 Kshs. 243,581. 40 Andrew Mutengo Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 115,259. 90 Leave Kshs. 12,221. 00 Service pay Kshs. 12,221. 00 Kshs. 243,581. 40 Mary Boke Nyahiri Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 105,436. 00 Leave Kshs. 12,221. 00 Service pay Kshs. 6,111. 50 Kshs. 227,648. 50 Mbaru Mwanyamba Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 105,436. 00 Leave Kshs. 12,221. 00 Service pay Kshs. 6,111. 50 Kshs. 227,648. 50 Canicus Mwita Joseph Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 105,436. 00 Leave Kshs. 12,221. 00 Service pay Kshs. 6,111. 50 Kshs. 227,648. 50 Michael Yaa Mgoka Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 56,319. 50 Leave Kshs. 12,221. 00 Service pay Kshs. 6,111. 50 Kshs. 178,531. 50 Tom Kerariu Michael Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 56,319. 50 Leave Kshs. 12,221. 00 Service pay Kshs. 6,111. 50 Kshs. 178,531. 50 Gabriel Chacha Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 37,326. 00 Leave Kshs. 4,935. 40 Kshs. 146,140. 90 Furaha Charo Menza Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 18,663. 00 Leave Kshs. 2,467. 70 Kshs. 125,010. 20 Samuel Nyahili Nchore Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 24,884. 00 Leave Kshs. 3,290. 30 Kshs. 132,053. 80 Grace Otieno Mbeja Notice Kshs. 12,221. 00 Compensation Kshs. 73,326. 00 Unpaid salary Kshs. 18,332. 50 Salary underpayment Kshs. 24,884. 00 Leave Kshs. 3,290. 30 Kshs. 132,053. 80 Disposition

15. For the reasons stated above, I enter Judgment for each Claimants in the respective sums indicated above plus costs and interest from the date hereof. The awards will be subjected to statutory deductions.

Dated and signed at Nairobi this 23rdday of February, 2018

ONESMUS MAKAU

JUDGE

Delivered at Mombasa this 2ndday of March, 2018

LINNET NDOLO

................................

JUDGE