[2023] KEELRC 384 (KLR)
The court found that the claimant was terminated without due process, as he was sent home and never formally recalled or given a hearing. The respondent failed to appear or contest the claim. The court accepted the claimant's evidence that he was paid below the statutory minimum wage for his role in the building and...
Source-derived case information.
- Citation
- [2023] KEELRC 384 (KLR)
- Parties
- Applicant: Ronald Otieno Ochieng; Respondent: China State Construction Engineering Corp (Kenya) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Cause E001 of 2022
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed for unfair termination and underpayment; overtime claim dismissed.
- Judges
- NJ Abuodha
- Legal Topics
- Unfair Termination, Underpayment of Wages, Statutory Minimum Wage, Failure to Issue Payslips
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Otieno Ochieng
Applicant
China State Construction Engineering Corp (Kenya) Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment without due process.
- 2 Whether the claimant was underpaid in violation of statutory minimum wage requirements.
- 3 Whether the claimant is entitled to compensation and terminal benefits for unfair termination and underpayment.
Ratio Decidendi
The court found that the claimant was terminated without due process, as he was sent home and never formally recalled or given a hearing. The respondent failed to appear or contest the claim. The court accepted the claimant's evidence that he was paid below the statutory minimum wage for his role in the building and construction industry and that he was not issued with payslips or a letter of appointment. However, the court found insufficient evidence to support the claim for overtime pay. The court awarded the claimant one month's salary in lieu of notice, four months' salary as compensation for unfair termination, and the balance of underpaid salary for 18 months, as well as costs of...
Court Disposition
Claim partly allowed for unfair termination and underpayment; overtime claim dismissed.
Orders
- The respondent shall pay the claimant one month's salary in lieu of notice (Ksh 38,970).
- The respondent shall pay the claimant four months' salary for unfair termination (Ksh 155,880).
Full Case Text
Judgment text and source record
26 paragraphs
Ochieng v China State Construction Engineering Corp (Kenya) Ltd (Cause E001 of 2022) [2023] KEELRC 384 (KLR) (3 February 2023) (Judgment)
Neutral citation: [2023] KEELRC 384 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kitale
Cause E001 of 2022
NJ Abuodha, J
February 3, 2023
Between
Ronald Otieno Ochieng
Claimant
and
China State Construction Engineering Corp (Kenya) Ltd
Respondent
Judgment
1. The claimant alleged that he was employed via an oral contract as a heavy commercial truck driver by the respondent on December 1, 2019 until March 1, 2021 at a monthly salary of ksh 29,190/= (daily ksh 973).
2. On March 1, 2021 the claimant reported to his place of work for duty as usual but was prevented from working on grounds that the truck assigned to him was scheduled for maintenance and was thus directed to go back home and wait to be called.
3. The claimant stated that he abided by the instructions and went home but was never recalled and he started frequent follow ups. On July 26, 2021 the respondent’s human resource officer informed the claimant that there were no plans to recall him and asked him to move on with his life.
4. The claimant further averred that during the period he worked the respondent subjected him to unfair labour practices by failing to issue him with payslips, underpaying him, not issuing him with a letter of appointment, denying him house allowance. The claimant further claimed he worked overtime and was never paid. The claimant therefore sought a declaration that the termination was unlawful and unfair and for compensation and terminal benefits.
5. The respondent though served never entered any appearance or filed a response to the claim.
6. At the trial, the claimant stated he relied on his statement dated April 19, 2022. He also relied on supporting documents filed with the claim.
7. In his statement he stated that his work station was Endebess town where the respondent had road construction works. His duties entailed ferrying materials to and from construction site and also dumping soil from the site at designated locations. His daily wage was ksh 973 which according to him was below statutory minimum wage for workers in building and construction industry. The basic minimum and hourly wage was ksh 1,299/= and 243. 05 respectively. The claimant thereafter in his statement repeated the averments in his statement of claim as constituting his evidence in support of the claim.
8. The court has reviewed and considered the claim and the evidence in support and has noted that apart from alleging working overtime the claimant never adduced any evidence to show at what time he reported to work and left and further the nature of the work he was performing that necessitated working overtime. The only aspect of the claim which the Court agrees with the claimant is the issue of underpayment and termination without following due process.
9. The court therefore awards the claimant as follows:i.One month’s salary in lieu of notice 38,970ii.Four months’ salary for unfair termination (the claimant had worked for approximately 2 years) 155,880iii.Balance of underpaid salary(1,299 – 973 x 18 months) 5,868200,718
10. The claimant shall further have costs of the suit.
11. It is so ordered.
DATED AND DELIVERED AT ELDORET THIS 3RD DAY OF FEBRUARY, 2023ABUODHA NELSON JORUMJUDGE ELRC