[2024] KEELRC 1364 (KLR)

Nyonga v China City Company Limited (Appeal E001 of 2024) [2024] KEELRC 1364 (KLR) (6 June 2024) (Judgment)

Neutral citation: [2024] KEELRC 1364 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Malindi

Appeal E001 of 2024

M Mbarũ, J

June 6, 2024

Between

Munga Jumaa Nyonga

Appellant

and

China City Company Limited

Respondent

(Being an appeal from the judgment of Hon. M. S. Kimani delivered on 10 January 2024 in Mariakani ELRC No. 6 of 2020)

Judgment

1. The appeal arises from the judgment delivered on 10 January 2024 in Mariakani Magistrates Court ELRC No. 6 of 2020. The appellant is seeking the judgment be set aside and the finding that there was no unfair termination of employment be reviewed with an award. In the alternative, the appellant seeks that terminal dues be reassessed and awarded together with costs.

2. The background of the matter is a claim filed by the appellant before the trial court on the grounds that on 15 January 2018, he was employed by the respondent as a machine operator and worked until 2 September 2019 at a wage of Ksh.12, 480 per month. He reported to work and was directed to go back home without any prior notice or hearing resulting in unfair termination of employment. He claimed that his terminal dues were not paid which included accrued leave days, work during public holidays amounting to Ksh.25, 808 and 8 months service pay. He claimed to be underpaid and that Ksh.43, 418 was due. The claim was as follows;a.12 months compensation ksh.175,810. 80;b.One-month notice pay ksh.14,650. 90;c.Service pay Ksh.7,325. 45;d.Public holidays worked Ksh.25,808;e.Underpayments Ksh.43,418. 20;f.Costs.

3. In response, the respondent case was that the appellant was engaged as a casual labourer in the crusher department on 16 May 2018 and employment was based on the availability of work. There was no continuous work as alleged or termination of employment since the appellant resigned from his employment voluntarily. There was summary dismissal following the appellant's absconding duty. The claim that the wage paid was ksh.12,480 is without proof and upon his resignation, the appellant cannot claim notice pay or compensation. Wages were paid per the Minimum Wage Orders hence no underpayments. Service pay is not due as the appellant was a member of the NSSF and all public holidays worked were compensated accordingly. A Certificate of Service.

4. In the judgment, the trial court dismissed the claim with costs on the basis that under the Evidence Act and Section 45 of the Employment Act, the appellant had failed to prove his case.

5. Aggrieved, the appellant has seven (7) grounds of appeal that the trial court erred in dismissing his claim despite making a finding that there was employment converted under the provisions of Section 37(1) of the Employment Act, 2007 (the Act). The respondent pleaded that he absconded duty or deserted duty but there was no evidence of the respondent following up on such allegations and this resulted in unprocedural and unfair termination of employment.

6. Other grounds of appeal are that the trial court failed to appreciate the fact that the appellant as a crusher was equally a machine operator and his evidence in chief was not put into account. The totality of evidence and submissions were not considered hence the appeal seeking the judgment be set aside.

7. Both parties attended and agreed to address the appeal by way of written submissions.

8. The appellant submitted that the trial court established that the appellant’s employment converted from casual employment to term contract under the provisions of Section 37 of the Act and hence had rights and benefits under the law. Before termination of his employment he was entitled to notice pay under the provisions of Section 35 of the Act.

9. There was unfair termination of employment without notice or any reasons which justified the award of compensation in accordance with Section 45 of the Act. Before the respondent terminated employment no reasons were given as required under Section 43 of the Act and the alleged resignation by the appellant is without evidence. The respondent amended the response over unsubstantiated allegations that Mwanaharusi Juma denounced by asserting the appellant absconded duty. The appellant relied on the case of National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR and Stella Auma Oduor v Solvit Security Solutions Cause No.882 of 2017 the court held that the reason for the employee summary dismissal was given in the letter terminating employment stated to be desertion of duty. The allegation of desertion of duty was not proved as a valid reason in accordance with Section 43 of the Act hence unfair termination of employment.

10. The appellant submitted that the totality of his evidence was not considered and his claims should be allowed with costs.

11. The respondent submitted that the conversion of the appellant’s employment to term contract from casual did not shield him from dismissal. Section 35(1) of the Act allows termination of employment upon notice. In this case, the appellant absconded duty and hence terminated his employment without notice. Under Section 47(5) of the Act, the appellant had the burden to prove unfair termination of employment. Without discharging this duty, the respondent had no requirement to justify the reasons for termination of employment as held in Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR.

12. The appellant testified that he reported to work on 2 September 2019 and was told to go away due to unavailability of work. He did not state who sent him away and no witness was called to support such allegations. There was no proof of termination of employment.

13. The respondent submitted that the appellant was a crusher and not a machine operator as alleged. He was engaged as a general labourer as per the payrolls and work attendance sheet produced in evidence. Under the Regulation of Wages and Conditions of Employment (General) Order, a machine operator is defined as a trained technical persons which the appellant did not possess. Without evidence of training, he remained a general worker as held in Boringa v Mega Pack (K) Limited Cause No.101 of 2017 (Nakuru).

14. The respondent submitted that the trial court well considered the evidence before it and the applicable law and arrived at a correct finding which should be confirmed and the appeal dismissed with costs.

Determination 15. This is a first appeal. The court is called to re-evaluate the entire record and arrive at its conclusions.

16. The appellant claimed he was employed as a machine operator on 15 January 2018 at a monthly wage of Ksh.12, 480. The respondent claimed that employment was from 16 May 2018 as a casual labourer depending on the availability of work at a wage of ksh.15, 885 per month. The appellant has no written contract.

17. The respondent filed a work attendance sheet for the year 2018; and Payroll for 2017/2018. There is no employment contract filed.I take it, that employment was on oral terms.

18. On the worksheets for the year 2018, the appellant is noted as being at work continuously and not within 24 hours without stoppage. Casual employment is hence defined under Section 2 of the Act as that work ending each day. Where the work continues beyond the day and the work relates to matters not likely to end within a day, under Section 37 of the Act, employment is converted to term employment with rights and benefits to the subject employee.

19. The learned magistrate well analyzed these legal provisions, cited case law, and arrived at a proper finding that there was employment protected under Section 37 of the Act. The appellant hence was secured with rights and benefits under the Act.

20. On whether employment was properly terminated despite the finding that casual employment converted to term employment, indeed, upon this finding, the trial court in addressing the issue of alleged absconding duty should have applied the entirety of rights under the Act. Absconding of duty is an act defined as gross misconduct, once alleged, notice must be issued to the employee and allowed to make his representations under the provisions of Section 41(2) of the Act.

21. In the case of Too v University of Eastern Africa, Baraton (Cause E023 of 2021) [2024] KEELRC the court held that absence from work per se does not constitute a ground for dismissal from employment unless it is without leave or other lawful cause. In this case, the respondent only made a general assertion of desertion of duty. No effort has been into as to what measures were taken to address such conduct. The respondent did not produce any effort to address such matter and whether the appellant was given the opportunity to explain the reason for the absence. Section 43 of the Act demands that the employer prove the grounds for dismissal.This resulted in unfair termination of employment.

22. In this regard, notice pay and compensation should have been assessed.

23. The respondent submitted work records including payrolls indicating that the appellant was earning a gross wage of Ksh.15, 140 per month while the appellant claimed that he was earning a gross wage of Ksh.14, 560. The disparity can be explained through the application of a house allowance hence the wage applied by the respondent as evidenced by the payrolls is more accurate at Ksh.15, 140. Notice pay is Ksh.15, 140.

24. On compensation, the appellant worked for the respondent from the year 15 January 2018 to 2 September 2019 a period of under two years. Compensation at 2 months gross wage is hereby found appropriate all at ksh.30, 280.

25. On the claim for service pay, the work sheet applied in allocating the gross wage demonstrate payment of statutory dues hence removing the appellant from claiming any service pay.

26. On the claim for underpayment, the basis of these claims by the appellant is that he was earning a basic wage of Ksh.12, 480 instead of 14,650 in the period of January 2018 to December 2018 and hence owed Ksh.26, 051. That from January to August 2019 he was earning a wage of Ksh.10, 816 instead of Ksh.14, 650 hence owed Ksh.17, 367.

27. The respondent filed work records including payrolls. There is tabulation of days worked and the payment made to the appellant for each day at work. The conversion of employment taken into account, under Section 17, 18 and 19, of the Act, the employer is allowed to pay for days worked. For the lapse in securing employment rights of the appellant, such is redressed.

28. The wage paid at ksh.14, 650 factoring the wage due to an employee working outside Mombasa area, a minimum wage of Ksh.12, 522 was due for the period of 2018 to 2019. The respondent paid over and above such minimum wage at Ksh.14, 650 hence covering the appellant accordingly. There is no underpayment.

29. On the claim for work during public holidays, these are gazette days. The Minister must issue a public notice in this regard. The duty is upon the one claiming to have worked during the public holidays to particularize how such days accrued. This is lacking in this case.

30. On the claim for costs, the appeal is partially successful to the extent that the appellant is entitled in notice pay and compensation as outlined above. He is entitled to 50% of his costs for this appeal. For the lower court, each party to bear its costs.

31. Accordingly, the judgment in Kaloleni CMELRC No.6 of 2020 is hereby reviewed and appeal is hereby allowed in the following terms;a.Compensation Ksh.30,280;b.Notice pay ksh.14,650;c.50% costs of the appeal.

DELIVERED IN OPEN COURT AT MOMBASA THIS 6 DAY OF JUNE 2024. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet……………………………………………… and ………………...…………………………