[2023] KEELRC 3276 (KLR)

Odhiambo v Hannjonuts Company Limited (Cause 976 of 2018) [2023] KEELRC 3276 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEELRC 3276 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 976 of 2018

J Rika, J

December 8, 2023

Between

Frank Ogalo Odhiambo

Claimant

and

Hannjonuts Company Limited

Respondent

Judgment

1. The claimant filed his statement of claim on June 18, 2018.

2. He states that the respondent employed him as a manager, on March 1, 2017.

3. His monthly salary was Kes 130,000, with add-ons of Kes 10,000 in bonus for every shipment done by the claimant for the respondent, and medical cover not exceeding Kes 50,000 annually.

4. He was issued a handwritten note by the respondent on March 21, 2018, barely 1 year after employment, referenced ‘’termination without notice.’’ It was alleged by the respondent’s directors that the claimant was involved in theft and fraud at the workplace.

5. He was not given details of the allegations and was not taken through a disciplinary hearing. He states that the respondent acted in violation of his right to fair labour practices under article 41 of the Constitution,, rules of natural justice, and the terms of the contract of employment.

6. He prays for the judgment against the respondent as follows: -a.Decision to terminate the claimant’s contract is quashed.b.The claimant is reinstated, without loss of benefits.c.The Respondent is ordered to pay the claimant’s salary as per the contract and aggravated damages for wrongful termination to be assessed by the court.

7. The Respondent filed its statement of response on July 12, 2018. It is conceded that the Claimant was employed by the Respondent. He was negligent in discharge of his role. He failed to renew the respondent’s organic licence, resulting in a penalty, and loss of Kes 400,000 to the respondent, in pursuing renewal. He failed to file VAT returns, resulting in further loss of Kes 300,000 to the respondent. He colluded with staff from KPLC to levy excess electricity charges on the Respondent, even when the Respondent’s factory was not operational. He was entrusted Kes 110,000 by the Respondent to renewal health insurance policy for Employees. He squandered the money, leaving Employees exposed to loss and damage. He pocked Kes 18 per kilo, from money earned by the Respondent on sale of macadamia nuts. The Respondent reported the matter to Industrial Area Police.

8. The Claimant signed the termination letter. He was not unfairly dismissed. After he left employment he embarked on a smear campaign against the Respondent. He withheld 2 phones valued at Kes 40,000, property of the Respondent. The Respondent states that it is entitled to the 2 phones, and statements of account from the Claimant on sale of macadamia and electricity expenses. It is proposed by the Respondent that the Claim is dismissed with costs to the Respondent.

9. There is no Counterclaim filed by the Respondent, based on its demands and expectations, as expressed through the Statement of Response.

10. The Claimant gave evidence and rested his case, on September 21, 2023. The hearing date was scheduled before the Deputy Registrar, in the presence of both Advocates. There was no appearance for the Respondent however, during the hearing. Parties were directed to file and serve their Closing Submissions and the matter scheduled for mention, on October 25, 2023.

11. The Respondent’s Advocates then filed an Application on the eve of the mention, October 24, 2023, seeking leave to cease acting. The court scheduled that Application for hearing on November 2, 2023. The respondent’s Advocates did not attend Court to prosecute the Application and dismissal orders were recorded, with Judgment reserved for delivery on notice.

12. The Claimant relied on his Witness Statement dated May 31, 2018, and Documents, exhibit 1-5. He denied that he was negligent. He left in 2018. He was initially employed on contract. In 2017, he was employed in an open-ended contract. He has been engaged in casual work since he left employment.

The Court Finds: - 13. There is no evidence adduced by the respondent, and the statement of response on record, which contains grave accusations against the claimant, is a bare Statement, bereft of any degree of substantiation.

14. It is uncontested that the claimant was employed by the Respondent as a Manager, on March 1, 2017. His monthly salary was Kes 130,000.

15. He was issued a note referenced, ‘’ termination without notice,’’ by the respondent, dated March 21, 2018. This was effectively a letter of summary dismissal.

16. No reasons were given for the decision, and the Claimant was not heard.

17. Termination was contrary to sections 41, 43 and 45 of the Employment Act, unfair for want of valid reason, and fair procedure.

Remedies. 18. The claimant prays that the decision by the respondent is quashed, and that he is reinstated to his position, without loss of benefits. He also prays for salary as per contract, and for aggravated damages.

19. The prayer for reinstatement is not available. The claimant was dismissed in 2018, over 5 years ago. Section 12 [3] [viii] of the Employment and Labour Relations Court Act, allows the Court to grant the remedy of reinstatement, within 3 years of dismissal.

20. The claimant did not give evidence of outstanding salary. It was not made clear to the court, what the prayer for ‘’payment of salary as per contract,’’ is premised on. There is no grievance on salary arrears disclosed, and established, through the claimant’s Pleadings and evidence before the Court.

21. The last prayer is that the Respondent is ordered to pay to the claimant ‘’aggravated damages for wrongful dismissal.’’

22. Aggravated damages are not generally awarded in employment contract disputes. Employees are not paid aggravated damages for unfair termination. Aggravated damages are normally paid if contractual or statutory damages are insufficient. They may be paid to prevent under-compensation to aggrieved employees. Aggrieved employees are paid compensatory damages, prescribed under section 49 of the Employment Act, and section 12 of the Employment and Labour Relations Court Act, capped at equivalent of 12 months’ gross salary, which is deemed to be a reasonable equilibrium between capital and labour, and adequate compensation by the law.

23. The claimant worked for about 1 year. He did not cause, or contribute to the circumstances, leading to termination. He was on an open-ended contract. He testified that he has not secured alternative formal employment, and relies on casual engagements for his sustenance. He prays for reinstatement and damages, but in the view of the Court, misstated the form of damages applicable. He was not spot-on, in his Pleadings and Evidence, but his imprecision does not warrant, that he leaves the seat of justice, with an empty pot at the end of the rainbow.

24. He is granted compensatory damages equivalent of 3 ½ months’ salary, at Kes 130,000 x 3 ½ = Kes 455,000.

25. Costs to the claimant.

26. Interest granted at court rate, from the date of Judgment till payment is made in full.It is ordered: -a.It is declared that termination was unfair.b.The claimant is granted equivalent of 3 ½ months’ salary in compensation for unfair termination, at Kes 455,000. c.Costs to the claimant.d.Interest allowed at court rate from the date of judgment till payment in full.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 8TH DAY OF DECEMBER 2023. JAMES RIKAJUDGECourt Assistant: Emmanuel Kiprono_____________________________Mare & Company Advocates for the ClaimantP.C. Onduso & Company Advocates for the Respondent