[2021] KEELRC 1034 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO 349 OF 2017

NANCY WANJA KINUTHIA..............................CLAIMANT

VERSUS

NYALA ESTATE LTD.......................................RESPONDENT

JUDGMENT

1. On 9th July 2010, the Respondent employed the Claimant as a general worker. The parties agree that they remained in the relationship until 1st September 2015 when the contract was terminated.

2. However, they disagree on the manner in which the contract was terminated. While the Claimant asserts that she was unlawfully terminated, the Respondent’s position is that the Claimant deserted duty resulting in the Respondent taking the decision to end the employer-employee relation between the parties.

3. The parties filed their respective pleadings. From the statement of claim, the Claimant asserts that she was employed by the Respondent on 9th July 2010 as a general worker. Her entry salary was Ksh. 7358/=. However, according to the Respondent during cross examination, the Claimant’s gross salary on termination was Ksh. 8,485/=.

4. She asserts that on 21st August 2015 she fell sick while on duty. That she sought permission from her immediate supervisor, one Joseph to go and seek medication. That the permission was granted and she left immediately for treatment. When she resumed duty on 1st September 2015 armed with medical documents to support her claim of having been unwell, she was instead told by one Gerald Kamau that she had been terminated.

5. The Claimant asserts that her termination was unfair as she was not even served with a termination letter. She asserts that she was neither given notice to terminate her services nor accorded a hearing in violation of the rules of natural justice.

6. Against this background, the Claimant prays for several reliefs as set out in the statement of claim. These include:-

a) A declaration that the Respondent’s termination of the Claimant’s contract of service was unlawful and unfair.

b) Salary in lieu of notice of Ksh 7,358/=.

c) Pay in lieu of the Claimant’s leave entitlement for 5 years of Ksh. 36,790/=.

d) Unpaid salary for August 2015 of Ksh. 7358/=.

e) Service pay of Ksh. 18, 395/=.

f) House allowance of Ksh. 66,222/=.

g) Compensation for unlawful termination of Ksh 88,296/=.

h) Interest on the amount aforesaid.

i) Costs of the suit.

7. The Respondent filed its response to the claim. In the response, the Respondent asserts that the Claimant left employment without permission and stayed away for more than 5 days in contravention of clause 12 of the Collective Bargaining Agreement between the parties. That despite efforts to establish her whereabouts through letter, the Claimant was nonresponsive and hence the decision to consider her as having deserted duty. Against this reply, the Respondent urges the court to dismiss the Claimant’s claim.

8. While the Respondent filed a list of issues, the Claimant did not. In the Respondent’s view, the following are the issues for determination by the court:-

a) Whether the Claimant absconded from the Respondent’s place of work.

b) Whether the Claimant furnished the Respondent with medical document as proof that she was unwell.

c) Whether the Respondent issued the Claimant a letter dated 27th August 2015 inquiring about the Claimant’s whereabouts.

d) Whether the Claimant was issued with any termination letter.

e) Whether the Claimant’s dismissal was unfair and unlawful.

f) Who shall bear the costs of the suit?

9. Without following any particular order and without addressing them necessarily as set out by the Respondent, the court will seek to address these issues in the following sections of the judgment.

10. On 6th August 2021, the cause proceeded to trial. Both the Claimant’s and Respondent’s cases were heard with each side calling a single witness. In large part, the witnesses adopted their respective witness statements as their evidence in chief. As well, they adopted their respective lists of documents together with copies of documents filed therewith as their evidence. In a nutshell, the evidence of the parties was basically a rehash of what is in their pleadings.

11. At the close of their respective cases, the parties filed written submissions. The submissions fortify their respective positions on the matter.

12. The court has evaluated the evidence on record. It is on record that the Claimant visited hospital on 21st August 2015. From the documents produced by the Claimant as medical chits in support of her assertion that she was unwell on 21st August 2015 is a receipt of even date issued to the Claimant by Kiambu Hospital. This, the Respondent acknowledges in its final written submissions. Although the other medical documents are largely illegible, this receipt is evidence that the Claimant interacted with a medical institution on 21st August 2015, the day she alleges to have fallen ill and sought medical attention. On the basis of this evidence and having regard to the fact that both parties agree that the Claimant reported on duty on 21st August 2015 before leaving (with or without permission), the court finds that it is more probable than not that the Claimant became unwell while on duty on 21st August 2015.

13. The Claimant testified that on becoming unwell, she sought permission to go to hospital from her immediate supervisor, one Joseph. In her testimony, the Claimant says the supervisor granted her permission which enabled her leave for treatment.

14. However, the Respondent’s evidence on this is that no such permission was sought. According to this witness, the Claimant was aware that the only place she could lodge a request of that kind was with a records clerk at the office and not her supervisor.

15. To the extent that the Claimant did not seek leave of absence in this manner or at all, the position by the Respondent is that no permission was sought and therefore none was granted. Further, the Respondent’s witness stated that he does not in any event remember seeing a request by the Claimant’s supervisor regarding her absence. What is curious though is that while the Respondent did not deny that the said Joseph was the Claimant’s supervisor, the Respondent elected not to avail him as a witness to fortify the Respondent’s assertion on this issue.

16. The question that the court must then address here is whether there was a prescribed procedure for seeking sick leave at the Respondent institution that the Claimant was aware of but which she did not follow. To be able to answer this question, I must evaluate not just the oral evidence presented by the parties but the documents filed by them as well. The main document to be referred to in this respect is the Collective Bargaining Agreement (CBA) between the parties produced as exhibit 5 by the Respondent. This is because the parties did not have another independent instrument evidencing the contract of service between them. The terms of the contract must therefore be as set out in the Employment Act and as improved by the CBA aforesaid. Clause 12 of the CBA provides as follows:-

‘’An employee, who absents himself from employment without permission and without valid reason, for a period of five (5) consecutive days or more, [he/she] will be considered as a deserter.’’

A clear reading of this clause can only be understood to mean that an employee can be absent from duty if he/she has permission and for valid reason. However, the clause does not prescribe from whom the permission should be sought. Therefore and in the court’s view, such permission is validly granted if sought from and granted by an employee’s immediate supervisor. This is especially so in the absence of any other evidence by the Respondent that employees had been given other regulations specifically forbidding them from seeking leave of absence from their immediate supervisors.

17. The other important clause in the CBA is 9 (c) dealing with sick leave. Under this clause, an employee who has been away from duty on grounds of sickness is entitled to some form of pay within some prescribed period (0 to 60 days) once he produces proof of having been prevented from working by some ailment. Under the said clause, the employer may only terminate such employee if the employee has been away from duty for a period in excess of 60 days. The Respondent in the cause admits that it terminated the Claimant before the lapse of the 60 days contemplated under clause 9 of the CBA. In doing so, the Respondent relied on the provisions of clause 12 of the CBA without accepting and considering the medical documents that the Claimant had availed. To the court’s mind, the procedure adopted by the Respondent in responding to the Claimant’s absence from duty was unnecessarily harsh and inconsiderate in the circumstances.

18. In the court’s view therefore, the Claimant has proved that she was unwell on 21st August 2016. She has also proved that she sought and was granted permission to seek medical attention.

19. The Claimant testified that when she came back to work on 1st September 2016, she was told she had lost her job. She was neither given a termination letter nor subjected to any disciplinary process. The Respondent in response states that it wrote to the Claimant on 27th August 2016 seeking to know her whereabouts. However, the Respondent’s witness stated that the said letter was left at the Respondent’s office for the Claimant to collect. Apparently and as is conceded by the Respondent’s witness, the Claimant never accessed the letter because she did not come to pick it. And there is no evidence that the Claimant had been made aware of the existence of the letter. As a consequence she was confronted with the hard truth of her termination on 1st September 2016. Based on the evidence above, the court finds that the letter by the Respondent dated 27th August 2016 was not handed over to the Claimant.

20. Considering these sequence of events, one needs to ask whether procedural fairness was observed in terms of section 41 of the Employment Act in the process leading to the Claimant losing her job. The law contemplates a disciplinary process to establish whatever substantive grounds the employer is considering for termination of an employee’s contract of service before the decision is taken. The employee is to receive notice of the accusations against him/her, he/she is to be notified of the right to offer a defense and call witnesses before a decision is rendered.

21. The Respondent does not say that it observed these procedural strictures in this cause. This was in flagrant violation of the obligation on the employer to observe procedural fairness in determining whether to terminate an employee. Consequently, the court finds that the Claimant’s termination was not just wanting on grounds of substantive justification but that it also violated the duty to ensure procedural fairness. The court declares the termination as unfair in the circumstances.

22. Having so found, the next question to be considered is whether the Claimant is entitled to the reliefs sought. In deciding this question, the court will be guided by the provisions of the Employment Act, other relevant provisions of statute and the evidence on record.

23. The Claimant has prayed for compensation for unfair termination comprising of an aggregate sum equivalent to her 12 months’ gross salary. However and after careful consideration, the court awards the Claimant up to 8 months of her gross salary under this head. In making this award, the court has considered the insensitive way the Respondent handled the Claimant’s termination and is of the view that an award equivalent to 8 months of her gross pay will reasonably recoup her loss. Conversely, in declining to award damages equivalent to 12 months’ salary the court has taken into account the duty on the Claimant to mitigate her loss. The Claimant did not provide any evidence to demonstrate that she attempted to mitigate her loss by seeking alternate employment. The Claimant is therefore awarded Ksh. 58,864/= under this head.

24. The Claimant was entitled to notice prior to her termination or salary in lieu thereof in terms of sections 35 and 36 of the Employment Act. As observed earlier in the judgment, she was not accorded this notice or pay in lieu. The court therefore awards her Ksh. 7,358/= under this head.

25. In terms of service pay, section 35 of the Employment Act entitles an employee exiting service this claim. However, employees who are members of some other gratuity scheme including NSSF are not entitled to claim service pay.

26. Copies of the pay slips issued by the Respondent and produced in evidence in the bundle of documents attached to the Respondent’s list of documents show that the Respondent was remitting Ksh. 200 to NSSF monthly on behalf of the Claimant. The Claimant did not lead evidence to controvert this evidence. Accordingly, this limb of the claim is declined.

27. The Claimant has prayed for Ksh 36,790/= being the amount allegedly equivalent to leave days she did not take for the approximately 5 years she was in the Respondent’s service. This, she computed at Ksh. 7,643/= x 5 years.

28. Leave is a statutory entitlement under section 28 of the Employment Act. Besides, clause 11 of the CBA which was produced by the Respondent and which it relied on as regulating the employment relationship between the Claimant and the Respondent recognizes this right. Under the CBA the minimum leave days for employees who had served the least is 25 days.

29. The Claimant in her testimony stated that she had not been granted leave for the duration she served the Respondent. In response, the Respondent said that as the Claimant was a seasonal worker, her leave days were granted pro-rata meaning that they will be computed in accordance with the number of days she had actually worked. In total, she would get a maximum 2 days per month. Assuming this was so, the claimant would get a maximum of 24 days leave in a year. But as the Respondent stated, this was worked out pro-rata so as to accord with the actual days she worked as a seasonal worker.

30. Regrettably, the Respondent did not provide a record of the workings relating to the leave days to show how many days the Claimant took as leave. Information on these workings would ordinarily be expected to be in the employer’s control in the ordinary course of business. In terms of section 112 of the Evidence Act, the employer would be required to prove that the employee went on leave pro-rata by providing the records on this to the court. Furthermore, section 10 of the Employment Act places the duty on the employer to provide details of any disputed term of an employment contract that ought to have been reduced into writing. In the court’s view, a dispute as to the quantum of leave and whether it was granted (where the employment contract ought to have been reduced into writing) is a dispute in respect of a term of such contract. Accordingly, the employer would be required to provide evidence to clarify any such disagreement.

31. Further, clause 11 of the CBA between the parties does not sanction the pro-rata formula that the Respondent was using to work out the Claimant’s leave days. In the court’s view and having regard to the totality of the foregoing, the evidence available is consistent more with the position that the Claimant did not take her leave during her term of service with the Respondent. If it were that the Claimant had taken her annual leave, nothing would have prevented the Respondent from providing records to demonstrate this. Unfortunately, this evidence was withheld. The court therefore finds that the Claimant would have, but for the reasons given elsewhere in this judgment, been entitled to unpaid leave allowance for the 5 years she worked totaling Ksh. 36,790/=.

32. The Claimant has also claimed unpaid house allowance from 2010 when she was employed. The Respondent does not dispute the fact that it did not pay the Claimant house allowance despite the fact that it did not house the Claimant at the same time. However, the Respondent’s position on this matter is that the Claimant was offered but declined physical housing within the Respondent’s estate. She instead opted to stay in an estate nearby at her own expense. Thus, the Respondent believes that it was under no obligation to pay the Claimant house allowance.

33. Section 31 of the Employment Act provides that an employer has a duty to provide physical housing or house allowance to his/her employees. The provision is couched in mandatory terms. It is therefore the duty of employers to pay reasonable house allowance to employees who elect to stay away from their work stations.

34. The Claimant has claimed this allowance at the rate of 15 percent of her salary of Ksh. 7,358/= for the 5 year duration. This works out to Ksh 66,222/=. In the court’s view this amount would have been due but for the reasons given below.

35. The Respondent has taken up a challenge to the Claimant’s claim for house and leave allowance basing on the provisions of section 90 of the Employment Act. In the Respondent’s view, even if it is demonstrated that the Claimant was entitled to the house and leave allowance claimed, the claims for these amounts were time barred.

36. Under the section aforesaid, all claims arising from a contract of employment must be filed within three years of the cause of action arising unless it is shown that the cause of action resulted in continuing injury to the Claimant. In the latter case, the Claimant must then file the claim within twelve months of the injury ceasing.

37. The Respondent’s objection in this respect has some level of validity. It is to be noted that this claim was lodged in court on 21st February 2017. This is notwithstanding that the Claimant was terminated on 1st September 2015, more than a year earlier.

38. By the time of termination of the Claimant on 1st September 2015, her claims for house and leave allowance between July 2010 and August 2013 were already time barred by dint of section 90 of the Employment Act. Even if these claims were to be said to have resulted in continuing injury, the Claimant could only have exercised the right to sue by 30th August 2016.

39. The court nonetheless holds the view that the breaches in relation to house allowance and leave were severable every time they occurred. Therefore, although the Claimant could not claim those that fall before August 2013, she is entitled to allowances that accrued on account of breaches that occurred after August 2013. Accordingly the Claimant is entitled to leave allowance for two years between August 2013 and August 2015. This works out to Ksh. 14,716/=. This amount is awarded.

40. By parity of reasoning the Claimant is also entitled to house allowance from August 2013 to the date of her termination on 1st September 2015. This works to Ksh. 7358 x 15% x 24= Ksh 26,488/=. This amount is awarded.

41. In relation to the August 2015 salary, it is clear that the Claimant had permission to be away from duty granted by her supervisor. This absence was on account of the Claimant’s ill health. In terms of clause 9 of the CBA between the parties, the Claimant was entitled to her full pay on production of proof of sickness. As has been observed elsewhere in this judgment, the Claimant availed medical documents to the Respondent but they were not taken in or considered. The court therefore finds that the Claimant was entitled to her August 2015 salary in full and awards her Ksh. 7,358/=.

42. The court also awards the Claimant interest on the amounts above from the date of institution of this cause till payment in full. Costs of the cause are also awarded to the Claimant.

43. In compliance with the dictates of section 49 of the Employment Act, this award is subject to the applicable statutory deductions.

44. Summary of the Award:-

a) A declaration is issued that the Claimant’s termination was unfair and unlawful.

b) An order is given that the Claimant be paid her terminal dues as follows:-

· Pay in lieu of notice Ksh 7,358/=.

· Compensatory damages equivalent to 8 months gross salary of the Claimant Ksh. 58,864/=.

· Dues on account of unpaid leave days Ksh. 14,716/=.

· House allowance Ksh 26,488/=.

· August 2015 salary Ksh. 7,358/=.

c) The Claimant is awarded interest on the amounts in b) above from the date of institution of the cause till payment in full.

d) The Claimant is awarded costs of the claim.

e) The award is subject to the applicable statutory deductions.

DATED, SIGNED AND DELIVERED ON THE 10TH DAY OF SEPTEMBER 2021

B O M MANANI

JUDGE

In the presence of:

…………………………………..for the Claimant

………………………………….for the Respondent

ORDER

In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.

B O M MANANI

JUDGE