[2024] KEELRC 1711 (KLR)

Ogola v Eveready Security Guards Co. Ltd (Employment and Labour Relations Cause 789 of 2015) [2024] KEELRC 1711 (KLR) (4 July 2024) (Judgment)

Neutral citation: [2024] KEELRC 1711 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 789 of 2015

MN Nduma, J

July 4, 2024

Between

Johnson Otsieno Ogola

Claimant

and

Eveready Security Guards Co. Ltd

Respondent

Judgment

1. The claimant filed suit on 12/5/2015 seeking a declaration that the dismissal of the claimant from employment was unlawful and unfair and that he be awarded compensation in respect thereof and payment of terminal benefits comprising of:i.Salary for the month of September being Kshs. 10,950/=ii.Payment in lieu of untaken/unpaid leave for the year 2014 being Kshs. 10,950/= x 1 year being Kshs. 10. 950/=iii.Payment of untaken/unpaid public holidays for the entire period of service being 11/30 days x Kshs. 10,950 x 5 years x 2 (being double rate) Kshs. 40,150/=.iv.Payment for off days not taken (worked) for the entire period of service being 4/30 days x 12 months x 5 years x Kshs. 10,950/= x 2 (at a double rate) Kshs. 175,200/=.v.Overtime for 4 extra hours worked daily being (Kshs. 10,950/30 days x 1/8) hourly rate Kshs. 45. 63 x 4 hours x 30 days x months x 5 months x 1. 5 (being 11/2 rate for normal working hours Kshs. 492,804/=vi.Uniform fees refund being Kshs. 3,600/=

2. The claimant testified under oath and produced letter of termination dated 16/8/2014 in which the respondent gave the claimant one months’ notice of termination to take effect on 17/8/2014.

3. In the said letter, the claimant was told that the clients of the respondent had refused to be guarded by the claimant due to his old age. The clients included Mr. A. V. Shah’s residence and a post at Ruaraka area. The claimant also produced letter of demand and notice of intention to sue. The claimant adopted the statement of claim and the particulars set out in there as his evidence in chief.

4. Under cross-examination the claimant said he was 62 years old when his employment was terminated. That he had served the respondent for a period of five (5) years and was given one month notice of termination. Claimant denied that he had warnings for sleeping at work. Claimant said that Mr. Shah did not tell him that he did not want his services.

5. The claimant said he was not fully paid his terminal benefits hence the claim. Claimant said he had not been paid in lieu of all untaken leave days. That he had asked untaken days to be deferred.

6. That in the month of September, 2014, he had worked only for 16 days. That he was paid salary and he left. That he is owed for unpaid overtime, for holidays worked, for transport and leave allowance.

7. The claimant said he was employed when he was 55 years old. That he got no warning or show cause letter. Claimant said he was not retired but was sacked. That the reasons given for the sacking were false.

DEFENCE 8. RW1 Paul Muriuki Njuguna testified for the respondent. He said he was employed by the respondent in the year 1989. RW1 adopted a witness statement dated 20/3/2023 as his evidence in chief and produced documents dated 30/11/2020 and 18/5/2021 as exhibits in support of the defence case.

9. RW1 said the claimant was employed on 15/3/2009 as a security guard. That during the time, the claimant worked, he was at times absent, late or drunk and some clients refused him due to his old age.

10. RW1 produced warning letters in the bundle dated 14/9/2022. That the claimant wrote an apology when he received a warning. RW1 said claimant’s conduct was affecting the respondent’s operations. That the claimant worked up to the year 2014. That he had served for 5 years.

11. That he left work due to underperformance. That the employment was terminated on one months’ notice due to complaints of his old age. That he was retired at 62 years of age.

12. That the claimant was paid his final dues as per the letter dated 20/8/2014 in the sum of Kshs. 31,579/=. That the leave due to him for the year 2014 was paid. That same was commuted and he was paid in lieu thereof upon application. The letter of application was dated 17/6/2014 and was before court. He was paid Kshs. 9,525/=. The claimant was also paid in respect of September 2014 salary for 16 days worked in the sum of Kshs. 5,840/=.

13. That the claimant was paid for all public holidays worked as per the payroll produced before court dated 30/11/2020. That he took 4 off days per month and records before court show that. That in December 2013, he was paid for 3 days holidays in the sum of Kshs. 1,090/=.

14. That the claimant received all final dues and signed in acknowledgement of receipt.

15. Under cross-examination RW1 said that the claimant worked six days a week being Monday to Saturday. That the 7th day was an off day. That the attendance sheet before court shows that the claimant worked eight hours shift. That the claimant was retired for underperformance and old age.

16. That the claimant was reporting to work drunk and clients refused him due to failure to perform well as a security guard. That work included to control traffic and persons coming in and out of premises.

17. That the claimant was employed on 18/5/2009 when he was 57 years old. That the respondent gave him a chance at an advanced age. That he got several warning letters which are before court from the year 2009 when he got 3 warning letters for sleeping at work. That guards range from 25 years old to 55 years old.

18. The claimant was given notice to show cause and was given one month notice of retirement. That he had to explain his poor work performance when clients complained and refused his services.

19. RW1 said that the retirement age of security guards is 60 years of age but before 2014, they would employ guards beyond 60 years. That claimant was paid his dues vide co-operative bank. That the termination letter was explained to the claimant and he signed for his release. That the claimant was asked to come to the meeting with his representative. That the claimant understood English.

DETERMINATION 20. The parties filed written submissions and the court has carefully considered the evidence adduced by the claimant vis a vis that adduced by RW1 and the issues for determination are:-i.Whether the claimant was retired for old age or his employment was terminated for misconduct.ii.If the respondent followed a fair procedure in terminating the employment of the claimant.iii.Whether the claimant has proved that he is owed the terminal benefits claimed.

21. The letter of termination dated 18th August 2014, speaks clearly that the employment of the claimant was terminated with effect from 17th September 2014 because of complaints from the respondent’s clients that the claimant was too old and had refused his services.

23. RW1 on the other hand said that the claimant did not perform his work to the required standard because he absented himself, came late to work and sometimes reported to work drunk and slept at the work place.

24. The bottom line is that the respondent had the option of retiring the claimant at age 62 due to his old age without attributing any misconduct, or underperformance to the retirement.

25. The respondent chose to attribute misconduct and poor work performance to the termination without providing any tangible evidence that a proper interrogation of performance of the claimant was undertaken prior to the termination or any proper disciplinary hearing was conducted with charges being preferred against the claimant and that he was given opportunity to answer to the charges in writing and at a disciplinary hearing accompanied by a representative of choice.

26. RW1 vacillated between a normal retirement at 62 years and a disciplinary termination. The respondent consequently failed to discharge the onus placed on it to prove that it had a valid reason to terminate the employment of the claimant following a fair procedure. The respondent violated sections 41, 43 and 45 of the Employment Act, 2007 in this respect. The termination was therefore unlawful and unfair. The claimant is entitled to compensation in terms of section 49(1) (c) and 4 of the Employment Act 2007.

27. In this respect the claimant was paid terminal benefits upon termination. The claimant had served the respondent for a period of 5 years. The claimant had been given a chance to serve at an advanced age of 55 years. That the retirement of the employees of the respondent was 60 years old. That the employment of the claimant was terminated for poor work performance at the age of 62 years and so the claimant did not have much prospects of continued employment even if he was a good worker. The claimant was not compensated upon being unfairly and unlawfully terminated from employment.

28. The court has considered also that the claimant was paid:i.16 days salary for days worked in September 2014. ii.Unpaid refund in the sum of Kshs. 3,000/=iii.In lieu of leave days not taken between 15/5/2009 to 16/9/2014 in the sum of Kshs. 2,190/= andiv.Service gratuity for 5 years in the sum of Kshs. 22,950/=Total terminal benefits Kshs. 33,980/=

29. The court awards the claimant the equivalent of four (4) months’ salary in compensation for the unlawful and unfair termination of employment in the sum of Kshs( 10,950 x 4) 43,800/=

Terminal benefits 30. The court is satisfied that the respondent paid the respondent his salary for the normal working days and during holidays. The court is satisfied that the claimant worked 8 hours shifts six days a week and was given 4 paid off days a week for each month. The claimant has failed to prove that the respondent owes him in lieu of leave days not taken, for any public holidays worked, for any off days taken, any overtime worked and for any uniform fees. These claims are dismissed for lack of prove.

31. In the final analysis judgement is entered in favour of the claimant against the respondent in respect of the equivalent of four (4) months’ salary in compensation in the sum of Kshs. 43,800/= with interest at court rates from date of judgment till payment in full and costs of the suit.

DATED AT NAIROBI THIS 4TH DAY OF JULY, 2024MATHEWS NDERI NDUMAJUDGEAppearance:M/s. Alividza for claimantMr. Waiyaki for respondentMr. Kemboi Court Assistant