[2023] KEELRC 2714 (KLR)

Nyikuli v Floral Heritage Limited & another (Employment and Labour Relations Cause 1388 of 2016) [2023] KEELRC 2714 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2714 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 1388 of 2016

K Ocharo, J

October 19, 2023

Between

Priscillah Amwoso Nyikuli

Claimant

and

Floral Heritage Limited

1st Respondent

Jatish Shah

2nd Respondent

Judgment

Introduction 1. The Claimant instituted this suit vide Memorandum of Claim dated 14th July 2016 seeking: -a.A declaration that the termination of the Claimant’s employment was unlawful and unfair.b.The Claimant be paid her terminal dues as set out hereinbelow1. Full payment of one month’s salary in lieu of notice Kshs 9,000/=2. Full payment of March 2015 salary Kshs. 9,000/=3. Annual Leave accrued in 4 years Kshs. 50,400/=4. Payment of full-service gratuity Kshs. 18,000/=5. Saturdays worked in the last 4 years Kshs. 133,056/=6. Sundays worked in the last 4 years Kshs. 127,512/=7. Compensation for unfair loss of job Kshs. 108,000/=8. Public holidays worked in the last 4 years Kshs. 28,800/=9. Underpayment for the past four years Kshs. 168,000/=Total Kshs. 651,768/=c.The Honorable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice.d.The Respondent to pay the costs of this claim.e.Interest on the above at court rates.

2. Pursuant to leave of the Court issued by the Honourable Justice Makau on 23rd July 2019, the Claimant filed an Amended Memorandum of Claim dated 27Th August 2019, accompanied by a Verifying Affidavit sworn on 27th August 2019.

3. Despite being served with the summons to enter appearance, the Respondent didn’t. The matter therefore proceeded as an undefended Claim.

Claimant’s case 4. At the hearing the Claimant moved the Court to adopt the contents of its witness statement herein dated 14th July 2016 as his evidence in chief and the documents that she had filed contemporaneously with the Memorandum of Claim ass her documentary evidence. It is the Claimant’s case that she first came into the employment of the 1st Respondent under a letter of employment dated 1st April 2012, as a housekeeper. She was late deployed to the 2nd Respondent’s house as a house help.

5. She stated that her monthly salary was Kshs. 9,000/= per month. She earned this salary up until the termination of her employment 1st March 2016. Consequently, her service to the Respondents for a period of 3 years 11 months (1430 days).

6. The Claimant claimed that on the 1st March 2016, the Respondent’s Director’s son informed her that her job had been terminated. She contends that the termination was not in conformity with the procedural fairness contemplated by the law. She was not, informed of any accusations against her and given a chance to defend herself against the same.

7. It is the Claimant’s case that she served the Respondent diligently and honourably before she was unlawfully and unfairly terminated from employment.

8. In the course of her employment, she throughout her employment worked for 15 hours each day. This is despite the fact that the Appointment letter provided for 9 hours per day. The Claimant states that she was instructed to report to work even on Sundays by the 2nd Respondent and on such days, she was subjected to immense sexual harassment and insults from him.

9. The Claimant contended that the termination was unfair and unlawful. It was devoid of procedural fairness and substantive justification.

Claimant’s Submissions 10. The Claimant filed submissions dated 1st August 2023.

11. It was submitted by Counsel for the Claimant that the termination of her employment lacked both substantive and procedural fairness. Reliance was placed on the case of Walter Ogal Anuro vs Teachers Service Commission [2013] eklr to buttress the submission that the absence of procedural and substantive justification or any of the two renders an employee’s termination unfair, by dint of the provisions of section 45[2] of the Employment Act.

12. It was submitted that contrary to the stipulations of the law, she was not informed of any allegations against her that could form a basis for the termination of her employment and given a chance to defend herself against any accusation. This rendered the termination procedurally unfair. To support this, point the holding in the case of Linet Akasa Shikoli vs Lilian Otundo [2014] eklr was cited.

13. On her prayers, the Claimant submitted her employment was one terminable by a 28 days’ notice or pay in lieu thereof, pursuant to the provisions of Section 35 (1) (c) as read together with Section 36 of the Employment Act. She was dismissed without any notice. and is therefore entitled to be awarded one month’s salary in lieu of notice.

14. The Claimant’s counsel further submitted that despite her entitlement to an annual leave of twenty one days for each year she served the Respondents, they never allowed her to proceed for leave at any point. She should be compensated for the leave days earned but unutilized. Further, notwithstanding that the Respondent used to deduct money from her salary for remittance for her NSSF account, it never forwarded the same. A refund of the money should be availed to her. To be specific, the deductions that were effected during the period January 2015 to August 2015, and February 2016.

15. On payment for all Saturdays and Sundays worked, the Claimant submits that her Appointment letter required her to work from 8. 30 am to 1. 30 pm on Saturdays and did not require her to report to work on Sundays. If she worked on Sundays, she was entitled to be paid at a double rate. The Claimant states that she worked overtime on Saturdays and was made to work on Sundays, without any compensation. The Claimant explains that she worked 39 Sundays in 2012; 51 in 2013; 51 in 2014; 51 in 2015; and 9 in 2016, making up a total of 201 Sundays. In 2012, the claimant her pay was Kshs. 269. 23 per day and between 2013 and 2016, Kshs. 346. 15 per day. At a double rate, therefore, Kshs. 538. 46 in 2012 and Kshs. 692. 30 from 2013 to 2016.

16. The Claimant submits that she is entitled to the maximum compensation contemplated under law for unfair termination.

17. Submitting on the relief sought for compensation for the work she did during public holidays, the Claimant stated that it was a term of her contract of employment that whenever she worked during a public holiday, her benefit could be double her ordinary daily wages. During her tenure, she worked on 5 public holidays in 2012; 7 in 2013; 7 in 2014; and 7 in 2015, making up a total of 26 days. She is entitled to be compensated for these days at a double rate.

18. It was submitted that throughout the period she was in the service of the Respondents, the Respondents paid her salary without adherence to the minimum wages that were relevant at all the material times. Consequently, she suffered a salary underpayment. The Claimant was employed on 1st April 2012, with a salary of Kshs. 7000. The relevant wage Order for the month of April 2012 was The Regulation of Wages [General] [Amendment] Order,2011. It provided for minimum wages of KShs. 7,586. was Between 1st May 2012 and 30th April 2013, the minimum wage for house servants was Kshs. 8,579. 80 as per the Regulation of Wages [General][Amendment] Order.

19. Later her salary was increased to Kshs. 9,000/=. Despite the increment, she was still underpaid as between May 2013 and April 2015, she should have been earning Kshs. 9,780 per month, and between May 2015 and March 2016, she should have been earning Kshs. 10,954/= per month. The Claimant therefore prays for the difference.

Issues for Determination 20. I have reviewed the Claimant’s pleadings, oral and documentary evidence, and submissions as well as attached authorities. The issues for determination are as follows: -a.Whether the Respondent unfairly terminated the Claimant’s employment;b.Whether the Claimant should be granted the reliefs sought.

a. Whether the Respondent unfairly terminated the Claimant’s employment 21. Before I delve into this issue it is imperative to state that a failure by a defendant to file a response /defence to a claim/suit as is the case in the instant matter, does not lessen the Claimant’s duty to prove her case to the requisite standards. I shall consider this matter through this lens, therefore.

22. From the letter of appointment dated 1st April 2012, there cannot be any doubt that at all material times, the Claimant was an employee of the 1st Respondent. Her evidence that she was deployed to serve at the 2nd Respondent’s house as a house help was not rebutted. I am persuaded she was.

23. In a matter where an employee is alleging that her employment was terminated unlawfully and or unfairly, section 47[5] of the Employment Act places a burden on such employee to demonstrate that termination occurred unlawfully and, on the employer, to show that the termination was justified. The Court takes cognizance of the fact that in practice there has been a challenge in deciphering what the twin burden actually entails. In my view, and this has been expressed in other decisions, the provision enjoins the Claimant to place forth evidence that prima facie establishes the termination and that it was devoid of procedural fairness and substantive justification or even that it violates certain Constitutional imperatives or contractual terms. It is then that a burden shifts to the employer to prove that the termination was justified.

24. I have carefully considered the Claimant’s evidence on what transpired on the 1st of March 2016, and the evidence on how the termination occurred, I am persuaded that she has discharged her legal burden.

25. Having held that the Claimant herein was terminated from employment, I now turn to whether the termination was unfair.

26. As submitted by the Claimant, Section 41 of the Employment Act provides for procedural fairness in the Kenyan situation. Imperative to state that the provision is couched in mandatory terms. In the case of Mary Mutanu Mwendwa v Ayuda [2013]eKlr, cited with approval by the Court of Appeal in Hema Hospital vs Wilson Makongo Marwa[2015]eKLR, Radido J stated;“The Employment Act, in a radical departure from the position which obtains under the common law and in Kenya prior to 2nd June 2008 has made it mandatory by virtue of section 41 for an employer to notify and hear any representations an employee may wish to make whenever his or her termination is under contemplation by the employer if the ground for termination relates to the employee’s misconduct, poor performance or physical incapacity. The employee is by law even entitled to have a representative present.”

27. The Burden of proof as regards adherence to the edicts of procedural fairness always lies on the employer. The Claimant asserted that she was dismissed from employment without being given, grounds for the action and, a chance to defend himself. Her evidence was not rebutted. The dismissal was unfair pursuant to section 45[2] of the Act.

28. The Claimant’s employment with the Respondent was terminated without notice. Her dismissal did not accord with the procedural process and therefore procedurally unfair. See the Hema case [supra].

29. Section 43 of the Employment Act places a legal burden in a dispute involving the termination of an employee’s employment to prove the reasons for the termination. In the absence of proof, the termination shall be deemed unfair under section 45[2] of the Act. In order for a party to discharge his legal burden it must adduce sufficient evidence for that purpose. Where the party does not tender any evidence seldom can the burden be discharged. The Respondent didn’t provide any evidence. It did not discharge the burden.

30. Section 45 of the Act requires the employer to prove that the reason[s] for the termination or dismissal were valid and fair. Having held that the dismissal was without notice, and considering the explanation given on how it occurred, I am convinced that what happened was a summary dismissal of the Claimant from employment, pursuant to the provisions of section 44[3] of the Act.

31. Section 44 of the Employment Act 2007 contains provisions on summary dismissal. It states that:“44. Summary dismissal(1)Summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.(2)Subject to the provisions of this section, no employer has the right to terminate a contract of service without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.(3)Subject to the provisions of this Act, an employer may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.(4)Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if:—(a)without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;(b)during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;(c)an employee willfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;(d)an employee uses abusive or insulting language, or behaves in a manner insulting to his employer or to a person placed in authority over him by his employer;(e)an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;(f)in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or(g)an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer's property.”

32. Section 44[4] of the Act provides for acts of commission and omission on the part of the employee that would form a basis for an employer to dismiss his employee summarily. The Court takes cognizance of the fact that the catalogue set out under sub-section 4 is not exhaustive as regards those acts that amount to gross misconduct. In my view, in order for a reason for a summary dismissal to be valid and fair, it must be one of those contemplated under the sub-section or any other misconduct that would have a similar impact on the contract of employment as any of those listed in the provision could.

33. The Respondent did not present any evidence to demonstrate that the reason for the dismissal was in nature as contemplated in the Act. Consequently, I find that the dismissal was substantively unjustified.

34. By reason of the premises, I conclude that the dismissal of the Claimant was procedurally and substantively unfair.

c. Whether the Claimant is entitled to the reliefs sought. 35. The Claimant’s employment was terminable by a twenty eight days’ notice under the provisions of Section 35 of the Act. I will consider the claim for one month’s salary in lieu of notice. Having found that the Claimant’s summary dismissal was unfair, I hold that the Claimant was entitled to the notice or salary in lieu of the notice. Consequently, I am persuaded to grant her notice pay under Section 36 of the Act.

36. The Claim for salary for the month of March 2016 is one without any legal foundation. The Claimant was dismissed on 1st March 2016, she hadn’t rendered any services therefore entitling her to any earnings.

37. She further claimed compensation for earned but unutilized leave days. She asserted that for the four years, she was in the service of the Respondents, she was not allowed to proceed for her annual leave at any point. Section 28 (1) of the Employment Act 2007, makes annual leave a statutory right for employees and therefore imposes a corresponding duty on the employer to allow enjoyment of the right. The section provides that an employee shall be entitled to not less than 21 days’ paid leave for every year, after working for the employer for the first 12 consecutive months. This provision corresponds with the Claimant’s Appointment Letter dated 1st April 2012 which provided that she would be entitled to annual leave after the first 12 months of continued service. Her evidence was not discounted. Considering the stipulations of section 90 of the Employment Act, which limits the period for actions emanating under contracts of employment or under the Act to three years of the cause of action, I award her compensation for leave day earned for three years.

38. On service pay, Section 35 (5) and (6) provide that:-“(5)An employee whose contract of service has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.(6)This section shall not apply where an employee is a member of—(a)a registered pension or provident fund scheme under the Retirement Benefits Act;(b)a gratuity or service pay scheme established under a collective agreement;(c)any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and(d)the National Social Security Fund.”

39. The Claimant has produced a copy of her NSSF Statement before this Court. The Court notes that the statement began to run in the year 2015. This Court deduces that prior to 2015, the Claimant was not registered as a member of the National Social Security Fund. Therefore, from 2012 to 2015, the Respondents did not discharge their legal duty as the employer to deduct and remit the Claimant’s statutory dues to NSSF. In my view, therefore, the Claimant didn’t fall under the category of those employees excluded from the benefit of service Pay. She is entitled to the same.

40. The Claimant has sought some global figures on account that he worked overtime on Saturdays, Sundays and during Public holidays, work that she wasn’t compensated for. I have carefully looked at the pleadings filed by her and her witness statement, and I see nowhere where she has with specificity indicated how the sums sought were arrived at. Any employee alleging that she worked during public holidays and not paid for the work must identify the specific holidays, otherwise, her claim shall be one suffering from generalities, upon which no relief can be availed. Equally, any employee claiming compensation for any overtime worked must place forth evidence to establish the hours worked and when. On this, I draw support from the case of Mombasa Employment & Labour Relations Court Civil Appeal No. E004 of 2020 Reef Hotel Limited vs. Josephine Chivatsi [2021] eKLR.An employee claiming compensation for working on public holidays is required to adduce evidence as to which particular holidays they worked. This position was affirmed by the Court of Appeal in its decision in Rogoli Ole Manadiegi vs. General Cargo Services Limited {2016} eKLR in the following words:““It is true the employer is the custodian of employment records. The employee in claiming overtime however, is not deemed to establish the claim for overtime by default of the employer bringing to court such employment records. The burden of establishing hours or days served in excess of the legal maximum rests with the employee. The claimant did not show in the trial court when he put in excess hours, when he worked on public holidays or even rest days…. He did not justify the global figure claimed in overtime showing specifically how it was arrived at…….”.

41. I note that in her submissions, Counsel for the Claimant has attempted to cure the gap in the Claimant’s claim on compensation for overtime, by supplying details that were not neither pleaded nor testified. She only needs to be reminded that submissions never take the place of evidence in any proceedings. They are never a substitute for the parties' pleadings. This was elaborately captured by the Court of Appeal in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”

42. The Court of Appeal in Avenue Car Hire & Another vs. Slipha Wanjiiru Muthegu Civil Appeal No. 302 of 1997 held that no judgment can be based on written submissions and that such a judgment is a nullity since written submissions is not a mode of receiving evidence set out under Order 17 Rule 2 of the Civil Procedure Rules (now Order 18 rule 2 of the Civil Procedure Rules). The same Court in Muchami Mugeni vs. Elizabeth Wanjugu Mungara & Another Civil Appeal No. 141 of 1998 found the practice of making awards on the basis of the submissions rather than the evidence deplorable.

43. In conclusion, the Claimant’s claim for compensation for the alleged overtime doesn’t meet the threshold set in the case of Mombasa Employment & Labour Relations Court Civil Appeal No. E004 of 2020 Reef Hotel Limited vs. Josephine Chivatsi [2021] eKLR. I decline to avail any relief under the head.

44. Her claim for ‘underpayments’, in my undoubted view flows from the provisions of Section 48 of the Labour Institutions Act,2007. The section provides;“Wages Order to constitute minimum terms of conditions of employment(1)Notwithstanding anything contained in this Act or any other written law—(a)the minimum rates of remuneration or conditions of employment established in a wages order constitute a term of employment of any employee to whom the wages order applies and may not be varied by agreement;(b)if the contract of an employee to whom a wages order applies provides for the payment of less remuneration than the statutory minimum remuneration, or does not provide for the conditions of employment prescribed in a wages regulation order or provides for less favourable conditions of employment, then the remuneration and conditions of employment established by the wages order shall be inserted in the contract in substitution for those terms.(2)An employer who fails to—(a)pay to an employee to whom a wages regulation order applies at least the statutory minimum remuneration; or(b)provide an employee with the conditions of employment prescribed in the order, commits an offence. No. 12 of 2007 [Rev. 2012] Labour Institutions [Issue 1] 20(3)If an employer is found guilty of an offence under subsection (2), the court may in addition to any other penalty order the employer to pay the employee the difference between the amount which ought to have been paid in terms of the wages order and the amount which was actually paid.(4)Where proceedings are brought under subsection (2) in respect of an offence consisting of a failure to pay remuneration at the statutory minimum remuneration or to provide an employee with the conditions of employment prescribed in the order, then—(a)if an employer is found guilty of the offence, evidence may be given of any like contravention on the part of the employer in respect of any period during the twelve months immediately preceding the date of the offence; and(b)on proof of such contravention, the court may order the employer to pay the difference between the amount which ought to have been paid during that period to the employee by way of remuneration and the amount actually paid: Provided that evidence shall not be given under paragraph (a) unless notice of intention to give such evidence has been served upon the employer together with the summons, warrant, information or complaint.(5)The powers given by this section for the recovery of sums due from an employer to an employee shall be in addition to and not in derogation of any right to recover such sums by civil proceedings: Provided that no person shall be liable to pay twice in respect of the same cause of action.

45. My understanding of this provision of the law is that Minimum wages cannot be out-contracted. A party shall not be heard to state ‘but that is what the contract provides’. If the contract provides for a lesser wage or less favourable working condition than what a Wages Order at the material time provides, an employee’s rightful wage or salary at the material time will be that provided by the Wages Order.

46. Therefore, in order for one to be able to determine whether an employee has been underpaid or not reference must be had to the relevant Wage Orders.

47. In the instant matter, I will consider the provisions of section 90 of the Act. Therefore, the material period is 3 years immediately preceding the date of filing the suit hearing. hence 1st April 2014 to 1st March 2016. In 2014, the relevant wage order was the Regulation of Wages (General) Amendment Order 2013 which came into operation on 1st May 2013 and provided that a general labourer including a cleaner, children’s ayah and house servant shall be paid a monthly rate of Kshs. 9,780. 85. The next relevant wage order was the Regulation of Wages (General) Amendment Order 2015 which came into operation on 1st May 2015, and provides a general labourer including a cleaner, children’s ayah and house servant shall be paid a monthly rate of Kshs. 10,954. 70.

48. The Claimant submits that her salary was increased to Kshs. 9,000/- until her termination on 1st March 2016. From 1st May 2014 to 1st May 2015, the Claimant was underpaid by Kshs. 780. 85 per month. From 1st May 2015 to 1st March 2016, the Claimant was underpaid by 1,954. 70 per month. She shall be entitled to the cumulative amount hereunder, under the head.

49. I now turn to compensation for unfair termination. This Court has already concluded that the Claimant was unfairly terminated by the Respondents. Section 49 (1) (c) of the Act bestows on this Court power to grant a compensatory relief in favour of an employee who has successfully assailed his or her employer’s decision to terminate his or her employment or summarily dismiss him or her from employment. Exercise of the power is discretionary, influenced by the circumstances of each case. This Court has keenly and carefully considered the manner in which the Claimant was terminated from employment, the casual disregard of the Respondent for fair labour practices and Sections 41 and 43 of the Employment Act, and the length of period the Claimant served the Respondent, and the fact that it was not demonstrated to the satisfaction of this Court that the Claimant contributed to the dismissal, and conclude that the Claimant is entitled to the relief contemplated under the section and to the extent of six months’ gross salary.

50. Per Section 51 of the Act, the Claimant is entitled to a Certificate of Service.

51. In the upshot, judgment is hereby entered for the Claimant as against the Respondents jointly and severally in the following terms:-a.A declaration that the Claimant’s termination of employment was unlawful and unfair.b.The Claimant be paid her terminal dues as set out hereinbelowI.One month’s salary in lieu of notice Kshs 10,954. 70II.Annual Leave accrued in 3 years Kshs. 23,003. 40III.Payment of service pay Kshs. 21,908. 00IV.Salary Underpayment for 3 years (780. 85x24) + (1,954. 70x10) Kshs. 38,287. 40V.Compensation pursuant to the provisions of Section 49 [1][c] of the Employment Act,2007 KShs.65,724. 00c.Interest on (b) above at Court rates from the date of Judgment until payment in full.d.That the Respondent bears the costs of this suit.e.The Respondent is hereby ordered to issue the Claimant with a Certificate of Service.

READ, DELIVERED AND SIGNED THIS 19TH DAY OF OCTOBER, 2023. OCHARO, KEBIRA.JUDGEIn the presence of:Ms Mideva for the ClaimantMr. Cheloti for the RespondentORDERIn 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 March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.OCHARO KEBIRAJUDGE