[2012] KEELRC 136 (KLR)
The court found that the respondent's conduct—specifically, instructing the claimant to wait for recall after he arranged for his duties to be covered and then failing to recall him—amounted to constructive and unfair dismissal. The claimant's evidence, both oral and documentary, was unchallenged and proved his case...
Source-derived case information.
- Citation
- [2012] KEELRC 136 (KLR)
- Parties
- Claimant: Ngaira Lumakunja; Respondent: Clar Security Services
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1892 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Constructive Dismissal, Unfair Termination, Terminal Dues, Service Pay, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngaira Lumakunja
Claimant
Clar Security Services
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was constructively and unfairly dismissed from employment.
- 2 Whether the claimant is entitled to terminal dues, including notice pay, salary for August 2011, and service pay.
- 3 Whether the respondent is liable for costs and interest.
Ratio Decidendi
The court found that the respondent's conduct—specifically, instructing the claimant to wait for recall after he arranged for his duties to be covered and then failing to recall him—amounted to constructive and unfair dismissal. The claimant's evidence, both oral and documentary, was unchallenged and proved his case on a balance of probabilities. The court awarded the claimant two months' salary for unfair termination, as well as terminal dues, interest, and costs, holding the respondent liable for the unlawful termination and the resulting financial loss to the claimant.
Court Disposition
judgment for the claimant
Orders
- A declaration that the claimant was constructively dismissed unfairly.
- The respondent to pay the claimant Ksh.28,875.00 plus interest at court rates from date of judgment till full payment.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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NGAIRA LUMAKUNJA …………….……….…......…………….…………………CLAIMANT
VERSUS
CLAR SECURITY SERVICES………….…….……………..……………….… RESPONDENT
JUDGMENT
The Claimant is Ngaira Lumakunja and the Respondent is Clar Security Services. The Respondent was served with the summons and the memorandum of claim but failed to enter appearing and to file the memorandum of Response. The case came up for hearing on 27th November, 2012 when the Respondent did not attend court despite service of the relevant hearing notice.
The claimant gave evidence to support his case as follows:
1. In June 2011 the Respondent through one Mike head-hunted the claimant from his previous employment and employed the claimant as a security guard at a monthly wage of Ksh.7,000/=.
2. The claimant’s son was admitted to the Kenya Medical Training Institute and the claimant applied for permission to attend the admission process. The Respondent denied him permission so that the claimant arranged with a workmate to step in and perform his duties while the claimant attended to his son’s admission as scheduled. That was in August, 2011. He had worked for three months and he was away for two days attending to the son’s college admission.
3. Upon return to work he was advised to go back and wait until he would be recalled back. He waited in vain and he suffered injury due to loss of employment.
4. Despite demand through Kituo Cha Sheria, the Respondent has failed to redress the claimant’s demands for terminal dues.
5. The claimant field the case claiming-
(a)One month’s salary in lieu of notice - Ksh.7,000. 00
(b)Salary for August 2011 - Ksh.7,000. 00
(c)Service pay- Ksh.875. 00
Total - Ksh.14,875. 00
He also prayed for any further relief as the court may deem just, interest and costs.
The court has considered the claimant’s case and finds that the Respondent constructively dismissed the claimant unfairly. The claimant’s oral and documentary evidence being Exhibits C1, C2, C3, C4and C5have proved his case on a balance of probabilities. The Claimant is awarded Ksh.14,000/= being two month’s salary for unfair termination.
In conclusion, judgment is entered for the claimant against the Respondent for-
(a)a declaration that the claimant was constructively dismissed unfairly;
(b)the respondent to pay the claimant a sum of Ksh.28,875. 00/= plus interest at court rates from date of judgment till full payment; and
(c)respondent to pay costs of the cause.
Signed, dated and delivered at Nairobi this 30th day of November, 2012.
Byram Ongaya
JUDGE