[2018] KEELRC 2283 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OFKENYA

AT NAIROBI

CAUSE NUMBER 1992 OF 2014

NICHOLAS WAMBUA NGUNGA...........................................CLAIMANT

VERSUS

KITUI COTTAGES AND GUEST HOUSE LIMITED......RESPONDENT

JUDGEMENT

1. The claimant averred that he was employed by the respondent on 1st October, 2012 as a guest attendant at a salary of Kshs 18,000 per month exclusive of house allowance. The claimant worked until 4th May, 2014 when he claimed the respondent terminated his services without notice or letter to show cause. Further upon termination the respondent refused to pay his terminal dues.

2. The respondent in a short defence stated that the claimant was its casual employee from 1st October, 2012 to 7th January, 2013 when his services were terminated. The respondent denied the termination was unlawful and unfair as alleged.

3. In his oral testimony in court, the claimant stated he was employed on 1st October, 2012 as a cook. His starting salary was Kshs 15,000 per month and later Kshs 18,000/=. According to him, he was never paid a house allowance. He further stated that he used to report to work at 6. 00 am and leave at 6pm. He never went on leave for the period he worked but used to have one off day each week. He denied he was a casual worker and that his salary was remitted monthly to the bank. On 4th may, 2014 he was told there was no more work and upon termination of his services he was only paid salary for the previous month.

4. The respondent witness Mr Raphael Kahingo stated that he knew the claimant and that he was a casual employee. He was working as a cook. According to him casual employee were paid Kshs 400 per day and were only hired during peak season. He stated that the respondent had permanent employees who were issued with appointment letters.

5. In cross-examination he stated that the claimant joined the respondent in October, 2012 and left in December 2012. He however did not have any records in court to show this. He further stated that the claimant never went on leave because he only worked for three months. Mr Kahingo further stated that recommendation letters were issued on the exit by an employee.

6. On the issue of date of appointment, Mr Nyabena for the claimant in his submissions relied on the letter dated 7th January, 2013 addressed to NHIF Kitui Branch in which the respondent stated among others that the claimant was employed on 1st October, 2012. According to counsel, the respondent did not state why it wrote the letter to NHIF if indeed the claimant was a casual employee.

7. In his submissions, Mr Ondali for the respondent submitted that claimant only worked for the respondent when needed. Further, the respondent’s business only hired workers during the high peak seasons. The claimant was therefore not entitled to protection under section 37 of the Act.

8. The only issue for the court to resolve in this dispute is whether the claimant was a casual employee or not and if so what was the proper procedure for separation with the respondent. Section 37 of the Employment Act provides that where a casual employee is hired for a continuous or aggregate period of one month or more, he shall be deemed to be a regular employee for purposes of section 35 of the Employment Act. That is to say in terminating his services he shall be entitled to procedures and entitlements as if he were a permanent employee.

9. The respondent seemed to have assumed that the claimant being a casual employee, it was under no obligation to give him a notice of termination of services or payment in lieu. He further assumed that the claimant was not entitled to be given a reason why the termination of his services was being considered. These assumptions could have been gotten away with under the previous legal regime but not under the current.

10. The law does not force an employer to keep an employee whose service he no longer needs. It only requires that where such a decision is reached, the same should be made known to the employee and his views known. The employee does not have to agree with the reasons but he or she must be given an opportunity to say something before termination is done.

11. There seems to be no record that the claimant was afforded such treatment. As observed the respondent took the view that the claimant was a casual employee and could be terminated at will without any reason and notice.

12. The court therefore finds that the termination of the claimant’s services was unfair in terms of reasons for it and the procedure followed and awards him as follows:

a. One month’s salary in lieu of notice 18,000

b. Prorata leave 34,000

c. Gratuity at the rate of 15 days pay for each complete year of service 9,000

d. 8 months salary as compensation for unfair termination of service 144,000

205,000

e. Costs of the suit

13. Items (a), (b), (c) and (d) shall be subject to taxes and statutory deductions.

14. It is so ordered.

Dated at Nairobi this 16th day of February, 2018

Abuodha J. N.

Judge

Delivered this 16th day of February, 2018

In the presence of:-

...............................for the claimant

.........................for the Respondent

Abuodha J. N.

Judge