[2018] KEELRC 1291 (KLR)
The court found that the respondent failed to attend court to rebut the claimant's allegations of unfair termination and lack of due process. The evidence, though scanty, indicated that the claimant was asked not to return to work unless he agreed to sign a new contract, and there was no evidence from the respondent...
Source-derived case information.
- Citation
- [2018] KEELRC 1291 (KLR)
- Parties
- Claimant: Nzoka Musyoka; Respondent: Kel Chemicals Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 808 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim partly allowed
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Procedural Fairness, Wages and Remuneration, Leave Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nzoka Musyoka
Claimant
Kel Chemicals Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment contrary to the Employment Act.
- 2 Whether the claimant was entitled to house allowance, leave, and service pay.
- 3 Whether the respondent followed due process in terminating the claimant.
Ratio Decidendi
The court found that the respondent failed to attend court to rebut the claimant's allegations of unfair termination and lack of due process. The evidence, though scanty, indicated that the claimant was asked not to return to work unless he agreed to sign a new contract, and there was no evidence from the respondent demanding his return to work. The court held that the separation did not follow the procedure required by the Employment Act, making the termination unfair. The court awarded the claimant compensation for unfair termination, notice pay, leave pay, and service pay, based on the admitted daily wage rate and the respondent's own admissions.
Court Disposition
claim partly allowed
Orders
- The termination of the claimant is declared unfair.
- The respondent shall pay the claimant Kshs 12,972 as one month’s salary in lieu of notice.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 808 OF 2014
NZOKA MUSYOKA.............................CLAIMANT
VERSUS
KEL CHEMICALS LIMITED........RESPONDENT
JUDGEMENT
1. This matter proceeded ex-parte after the court was persuaded that the respondent though properly served did not attend court. The claimant averred that he was employed by the respondent on 18th January, 2008 as a guard at a monthly salary of Kshs 18,000/= per month. He used to report to work at 6:30 a.m. and work until 6:30 pm daily.
2. On 22nd November, 2013 the respondent’s manager called him and wanted to compel him to sign a document which he had not read. He refused requesting to be allowed to read before signing but was told to go home and not to report to work the next day as he had been dismissed. The claimant reported the dispute to labour offices but the respondent failed to turn up for conciliation. The claimant further pleaded that during his entire time of service he was never paid house allowance, nor given a rest day and never went on leave.
3. The respondent on its part stated that the claimant was employed on a daily wage of Kshs 432/40. The respondent further averred that on 22nd November, 2013, the Security Manager Mr Mwanzia called all daily wage employees the claimant being one of them and explained to them that the respondent had decided to convert all daily wage employees to monthly contract employees and offered them letters of appointment together with Company’s Rules and Regulations for signing and the claimant refused to take and sign the document and never reported on duty on 23rd November, 2013.
4. The respondent further denied that the claimant was not paid house allowance, leave and overtime. According to the respondent, it did not terminate the claimant’s services. The respondent however admitted that the claimant was entitled to 42 days leave pay at the rate of 432/40 per day and service pay for 3 years.
5. In claim for unfair termination, the onus is on the claimant to show unfair termination has taken place while the onus of justification for reasons for termination is on the employer. The burden of proof for other heads of claim such as overtime, underpayment and non-payment of house allowance etc rest on the claimant.
6. Whereas he alleged that he was earning Kshs 18,000/= no evidence was produced by him to show he was earning any such salary. The claimant did not further exhibit any payslip or document to show his salary was without house allowance. It however cannot be gainsaid that the claimant was on some salary which the respondent has correctly pointed was Kshs 432/40 per day as per the prevailing wage order.
7. The respondent did not attend court to rebut the claimant’s allegations that the was terminated without a reason and that due process was not followed in terminating him. The dispute was reported to the Labour Office and from the document attached by the respondent there is none addressed to the claimant demanding his return to work at the pain of dismissal in default. It was therefore more probable than not that the claimant was asked not to come to work unless he agreed to sign the contract the respondent referred to in the memorandum of response.
8. The evidence in support of the claim is rather scanty, however one thing that is clear is that the separation between the respondent and the claimant did not follow the procedure laid in the Employment Act.
9. The court to that extent will declare the termination unfair and award the claimant as follows:
Kshs
a. One month’s salary in lieu of notice 12,972. 00
b. 42 days of leave (admitted) 18,170. 00
c. Service pay 5 years at the rate of
15 days pay for each completed year of service 32,437. 50
d. Five months salary for unfair
termination of service 64,860. 00
128,439. 50
e. Costs of the suit
10. It is so ordered.
Dated at Nairobi this 9th day of August, 2018
Abuodha J. N.
Judge
Delivered this 9th day of August, 2018
Abuodha J. N.
Judge
In the presence of:-
…………………………………...…… for the Claimant
………………………………………. for the Respondent