[2025] KEELRC 1028 (KLR)

Ng’ang’a v Transmatress Ltd (Cause 10 of 2022) [2025] KEELRC 1028 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEELRC 1028 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Eldoret

Cause 10 of 2022

MA Onyango, J

March 27, 2025

Between

Patrick Mburu Ng’ang’a

Claimant

and

Transmatress LTD

Respondent

Judgment

1. The suit herein was filed by the Claimant vide Memorandum of Claim dated 20th June, 2018 in which he alleges that he was employed by the Respondent, a limited liability company registered in Kenya and operating a supermarket in Kitale, in December, 2005, as a casual performing general duties. That he was paid a daily wage of Kshs. 115.

2. That after working for one year he was confirmed into permanent employment in February, 2007 and was issued with Job ID No. TR 633. His starting salary was Kshs. 11,000 per month. At the time of termination of his employment he was earning Kshs. 26,000 per month.

3. The Claimant avers that he worked without incident until he was dismissed orally by the Respondent. It is his case that on 24th August, 2016 the Claimant took his normal off duty and handed over everything to his colleague Ruth and manager Francis Onyisa Ndalila and Assistant Manager, Michael Onyango Ojodo.

4. That on 26th, August, 2016 while at home he received a call from the Respondent’s managers alleging that he had stolen a phone, an issue he knew nothing about.

5. The Claimant avers that when he reported to work on 26th August, 2016 his managers did not allow him to clock in and insisted that he must produce the phone before being allowed to work. That the Managers were acting on instructions of the Director Mr. Kishore Velji Pattani.

6. The Claimant avers that when he reported to work on 27th August, 2016 he met the Director who denied him access to the premises alleging that he was a thief and could not be trusted to work in the company. That the director told him to consider his employment terminated and that he should not be seen at the premises.

7. The Claimant avers that the verbal dismissal was without justification or notice.

8. The Claimant itemized his terminal dues as follows:a.August salary since the claimant as orally dismissed on 27th August 2016 =26,000/=b.3 months salary in lieu notice- 26,000/= x 3 = 78,000/=c.Unutilized leave days from 2006 to 26th August 2016- = (10 years x 26,000/=) 260,000/=d.Overtime pay at 2 hours per day for 10 years—173 per hour x 60 days per month x 12 month x 10 years= 208,200/=e.Gratuity pay 26,000/= (salary) x 10 years worked x 15/ 30 = 130,000/=f.12months salary for unprocedural dismissal @26,000 worked x 12 months = 312,000/=g.Salary for the remaining years of the claimant 25 years since the claimant was employed in permanent and pensionable =650,000/=h.NSSF deductions for the remaining 25 years =400(per month) x 12(months) x 25 (years)i.=120,000/=i.NHIF Deductions for the remaining 25 years 320(per month) x 12(months) x 25(years)i.=96,000/=j.Leave for the remaining 25 years 21 (days) x 26,000) (salary) x 25 (years) =k.Gratuity for the remaining 25 years = 325,000/=l.Certificate of serviceTotal =2,205,200/=

9. The Claimant prayed for remedies as follows:a.A declaration that the dismissal of the claimant from the employment was illegal, unprocedural and unfair.b.A declaring that the respondent’s action throughout the claimant’s employment was illegal and unjust.c.Reliefs as per paragraph 16 above.d.Costs and interestse.Any other relief this court may deem fit and just to grant.

10. In response to the Claim the Respondent filed a Response to Claim dated 24th February, 2020 in which it admits that the Claimant was its employee but denies that it orally terminated the Claimant’s employment. The Respondent avers that the Claimant deserted duty following his involvement in the disappearance of a mobile phone, an incident that was reported to the police for investigation.

11. The Respondent avers that the Claimant took his off duty on 24th August, 2016. That after the loss of the phone was noted he was contacted to make clarification as was normal in the workplace. That thereafter the Claimant did not report back to work or make any efforts to explain the loss of the phone.

12. The Respondent denies that the Claimant was dismissed orally on 27th August, 2016 as alleged in the Claim. The Respondent avers that the Claimant was formally dismissed on 1st September, 2016 by the Respondent’s Human Resource Department on grounds of desertion after he failed to show cause. That the dismissal letter was served upon the Claimant personally.

13. The Respondent avers that it adhered to the law in terminating the employment of the Claimant and that the letter of termination stated the reasons for termination.

14. The Respondent denies that it owes the Claimant overtime and states the same was paid with salary as reflected in the Claimant’s pay slip. The Respondent further denies owing the Claimant notice stating that he is not entitled to the same having been dismissed from service. The Respondent avers that the Claimant had no outstanding leave as he utilized all his leave days. The Respondent avers that the Claimant is only owed salary for days worked in August, 2016 which he was to be paid upon clearing which he has not.

15. The Respondent states that the Claimant is not entitled to gratuity having deserted duty. It denies that the Claimant is entitled to compensation as he was not unfairly terminated.

16. The Respondent states that it remitted all NSSF and NHIF deducted from the Claimant’s salary.

17. It states that certificate of service will be issued to the Claimant once he clears with the Respondent.

Evidence 18. The parties were heard on 26th June and 24th September, 2024 when they presented their evidence. Thereafter they filed and exchanged submissions.

19. The witnesses adopted their witness statements and documents filed in support of their respective cases. By and large they reiterated the averments in their pleadings. The Claimant testified on his own behalf as CW1 while the Respondent called Lucy Wacuka Warui, its Human Resource Manager who testified as RW1.

Analysis and Determination 20. I have considered the pleadings, evidence and submissions on record. The issues arising for determination are whether the termination of the Claimant was fair and if he is entitled to the remedies that he has prayed for.

21. On the first issue the Claimant avers that he reported back to work on 26th August, 2016 after his off day which fell on 25th August, 2016 but was not allowed into the premises. That he reported to work again on 27th and was not allowed in and was told that his employment had been terminated for stealing a phone.

22. The Respondent on the other hand avers that the Claimant disappeared on 24th and never reported back to work even after being called. That the Claimant was issued with a notice to show cause. It was the Respondent’s evidence that after taking the phone the Claimant failed to report back to work.

23. The Respondent produced a letter dated 26th August, 2016 addressed to its Human Resource office in which they explained the Claimant’s case. The letter reads as follows:Trans-mattresses Supermarket Ltd26th August, 2016Human ResourceWoolmatt ltdREF: Mobile Phone TheftGreetings,We are wiring this letter to inform you of what transpired on 23rd Aug, 2016 – 25th Aug 2016. Patrick Mburu Ng’ang’a P/No. 633 took a phone from the shelf worth Ksh.53,500 and never returned it back meaning he stole it. On 24th Aug, 2016 the same Mburu was absent at around 3pm he sent two guys to buy two infinix x600 phones worth 16,500. The code had been interchanged whereas the amount was the price for flash disk.We ask about whoever did that from the back office but no one took the responsibility. One lady from he back office Anne Wanugu Wahome P/No. 1076 left the job place without permission and without informing anyone. Kindly stop their payments for this month and any other benefits until further direction.Yours faithfullySignedMr. KishorDirectorTransmatresses Ltd

24. The Claimant was issued with a letter dated 1st September, 2016 which reads:Trans-mattresses Supermarket Ltd1st September, 2016Patrick Mburu Ng’ang’aC/O Trans Mattresses ltd.KITALEP/No.0633Dear Sir,Re: Desertion Form DutyWe note from our records that you have been absent from duty since 25th August, 2016 to date without leave or lawful cause contrary to the Employment Act. 2007, Chapter 44 subsection (4)(a).In accordance with employment Act, absence from duty without authorized leave or permission is punishable by summary dismissal. This letter therefore serves as to inform you that your services shall be terminated summarily with effect from 30th August 2016 unless sufficient reason is given.Kindly surrender your job Id. Uniforms and or any other company items in your possession to your Branch Manager to facilitate your clearance and payment of your final dues.Yours faithfully,SignedLucy WacukaHuman resource Dept.Cc. Managing DirectorBranch Manager

25. The demand letter from the Claimant’s advocate dated 27th October, 2017, more than a year later, and the reply thereto from the Respondent, confirm that the Claimant never cleared with the Respondent to enable him collect his terminal benefits.

26. I am satisfied that the Claimant absconded duty after the loss of a telephone at the place of work based on the evidence on record and statements written by his colleagues. I am also satisfied that the Claimant was contacted after he absconded duty but did not go back to work. I thus find that the Claimant deserted duty and therefore did not prove that the termination of his employment was unfair.

27. On the remedies, the Claimant is entitled to pay for days worked in August, 2016 up to 25th August, 2016 as he was expected back to work on 26th after his off day but never reported back.

28. The Claimant having absconded duty is not entitled to pay in lieu of notice.

29. The Claimant is entitled to 45 leave days which the Respondent acknowledged and included in the tabulation of his terminal dues as presented to court.

30. The Claimant was paid overtime with his salary as is evident from his pay slips. The prayer for overtime is accordingly not merited.

31. The Respondent’s tabulation of the Claimant’s terminal dues acknowledged that he was entitled to gratuity.

32. The Claimant is not entitled to compensation having not proved unfair termination of his employment.

33. The prayer for salary, gratuity, leave, NSSF and NHIF to date of retirement is not payable under the Employment Act or any other law that the Claimant was subject to.

34. The Claimant did is entitled to certificate of service which the Respondent is directed to issue to him.

35. Other than the terminal dues awarded above, the claim herein is dismissed.

36. For avoidance of doubt, the Respondent is directed to pay the Claimant his terminal dues and issue him with a certificate of service. No deduction for the lost phone may be made from the Claimant’s terminal dues as the reason for termination of his employment was not due to theft of the said phone which was never proved. The termination was due to absconding duty. The Respondent may also not deduct one month’s salary from the Claimant’s terminal dues as he was dismissed and an employee dismissed from service is not liable to pay the employer any salary in lieu of notice.

37. Each party shall bear its costs to this suit.

DATED, DELIVERED AND SIGNED AT KITALE THIS 27THDAY OF MARCH 2025M. ONYANGOJUDGE