[2020] KEELRC 1740 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE 1534 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

NDULU NZYIMI............................................................CLAIMANT

VERSUS

BASCO PRODUCTS KENYA LIMITED...............RESPONDENT

JUDGMENT

Vide his Memorandum of Claim dated 28th August, 2015 and filed in Court on 1st September, 2015, the claimant avers that his employment was unfairly and wrongfully terminated by the Respondent herein a Limited Liability Company with its registered office in Nairobi.

His case is that he was employed by the Respondent from March 2007 as a casual labourer being deployed in the delivery of goods to customers. He was earning a monthly salary of Kshs.15,025/=.

The Claimant avers that he worked diligently and to the Respondent’s satisfaction until 5th September, 2013 when his services were unfairly terminated by the Respondent on the grounds that he had allegedly misplaced a delivery note two months earlier. He contends that this action by the Respondent was tantamount to constructive dismissal as the Respondent failed to follow the laid down procedure as provided under the Employment Act in terminating his services.

Aggrieved by the decision by the Respondent, the Claimant filed the instant Claim seeking the following reliefs:-

a) Damages for unfair termination.............Kshs.180,000

b) Notice.......................................................Kshs.15,000

Total Kshs.195,000

c) Costs of this suit together with interest thereon at such rate and for such period as the Court may deem fit to order.

d) Any other just and equitable relief as the Court may deem appropriate.

The Respondent in its Memorandum of Defence dated 20th July 2016 and filed in Court on 21st July 2016 admits having employed the Claimant. It avers that the Claimant’s employment was on contractual basis on fixed term of three months which contracts were intermittently renewed. The Respondent further avers that the last contract was for the period 10th June, 2013 to 9th September, 2013 and that the Claimant’s engagement was as a general labourer earning a consolidated salary of Kshs.15,025/= inclusive of house allowance.

The Respondent contends that on 5th September, 2013 shortly before his Contract was to lapse the Claimant unlawfully and without any just reason absconded duty. The Respondent further contends that it did not rush to terminate the Claimant’s employment opting to await communication by the claimant on his whereabouts. However, the Claimant failed to communicate and the contract subsequently lapsed.

The Respondent stated that it did proceed to compute the Claimant’s terminal dues but the same has never been collected as the Claimant has never presented himself to receive the same.

The Respondent denies that the Claimant’s employment was unfairly and unlawfully terminated but rather that his contract lapsed and that the same was not subject to automatic renewal. The Respondent further contends that the Claimant is not entitled to the reliefs sought in his Memorandum of Claim.

In conclusion the Respondent urged the Court to dismiss the instant Claim with costs to the Respondent.

The claim was fixed for hearing on 2nd April, 2019 when the Claimant testifying on his own behalf. The Respondent failed to call any witnesses.

Claimant’s Case

In his evidence the Claimant reiterated the averments made in his Memorandum of Claim. He requested and was allowed to adopt his witness statement dated 28th August, 2015 and filed in Court on 1st September, 2015 as his evidence in chief. He testified that on 5th September, 2013 one of the Respondent’s Managers accused him of losing a delivery note. That the said manager accused him of having stolen the goods and in turn resorted to hiding the delivery note. That the said Manager informed him that he was relieved of his duties with the Respondent

On cross examination, the claimant stated that at the time of termination he had a valid contract that was scheduled to expire on 9th September 2013. He further confirmed that he was terminated on 5th September 2013, 4 days to the expiry of his contract.

He stated that the delivery note that the Respondent accused him of losing was in July, 2013 and that he was not issued with any notice to show cause over the loss and no disciplinary hearing was conducted by the Respondent prior to his termination.

Submissions by the Parties

The Claimant submitted that his termination was not in accordance with fair procedure as provided under Section 41, 43 and 45 of the Employment Act, 2007. The Claimant relied on decisions in Gilbert Mariera Makori Vs Equity Bank Limited (2016) eKLR, Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited (2014) eKLRandGeorge Onyango Akuti Vs G4S Security Services Limited (2013) eKLR.

The Claimant further submitted that he is entitled to the reliefs sought in his Memorandum of Claim and urged the Court to allow the same as drawn.

Respondent’s Submissions

The Respondent on the other hand submitted that the Claimant had failed to discharge the burden of proving that his services were unfairly terminated as required under the provisions of Section 47 of the Employment Act, 2007. The respondent relied on the provisions of Section 107 and 109 of the Evidence Act and the case of Miller VS Minister of Pensions (1947) 2 ALL ER 372.

The Respondent submitted that the Claimant is not entitled to the reliefs sought in his Memorandum of Claim, the Claimant having absconded duty and that there was no time for the Respondent to initiate the disciplinary measures given that the claimant’s contract was to lapse in 4 days. The Respondent further contends that it did not terminate the Claimant’s services as alleged but rather that the Contract terminated by effluxion of time. The Respondent relied on the Court of Appeal decision in the case of Amatsi Water Services Company Limited Vs Francis Shire Chachi (2018) eKLR.

Analysis and Determination

Having considered the facts of this cause, evidence, submissions and authorities cited by the Parties, the following are the issues for determination:

1. Whether the claimant’s employment was terminated or lapsed.

2. Whether the termination, if any, of the Claimant’s employment was valid both procedurally and substantively.

3. Whether the Claimant is entitled to the reliefs sought.

Before dealing with the issues as set out herein, it is important to dispose of the issue whether the claimant’s employment was on intermittent contracts as pleaded by the respondent. No evidence was adduced by the respondent to prove this fact. I will therefore hold that the claimant was on continuous employment even though he signed several fixed term contracts of 3 months’ duration.

On the issue whether the claimant’s contract was terminated or it lapsed, the evidence is that the contract terminated 4 days before the lapse date. This therefore means that the contract did not lapse as pleaded by the respondent.

On whether the termination was unfair, the statutory burden under Section 47(5) of the Employment Act is that –

For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.

The respondent having not called any evidence and having pleaded that the claimant’s contract was terminated without him being subjected to the disciplinary process under Section 41 of the Act, I find that the termination was unfair.

Whether the claimant is entitled to the reliefs sought

Having found that the claimant’s termination was unfair, he is entitled to pay in lieu of notice and compensation. I award him one month’s salary in lieu of notice Kshs.15,025.

I further award him compensation equivalent to 10 months’ salary taking into account his length of service of more than 7 years and the manner in which his employment was terminated without either hearing or notice. I have further considered that the respondent did not call any witness to controvert the averments by the claimant. I thus award him Kshs.150,250.

Total Award is Kshs.165,275. 00

The respondent shall pay claimant’s costs and interest shall accrue for date of judgment.

The Claimant is further entitled to costs of the Claim.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF JANUARY 2020

MAUREEN ONYANGO

JUDGE