[2024] KEELRC 1010 (KLR)

Onam v Kilimani Junior Academy Limited (Cause 639 of 2016) [2024] KEELRC 1010 (KLR) (12 April 2024) (Judgment)

Neutral citation: [2024] KEELRC 1010 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 639 of 2016

MA Onyango, J

April 12, 2024

Between

Brenda Kimanzi Onam

Claimant

and

Kilimani Junior Academy Limited

Respondent

Judgment

1. Vide her Memorandum of Claim dated 18th March 2016 and filed in Court on 19th April 2016, the Claimant avers that after she resigned from employment, the Respondent unfairly withheld her terminal dues.

2. The Claimant states that she was employed by the Respondent as its Principal via the letter of appointment dated 16th December 2008 which was duly executed on 9th December 2009.

3. It is the Claimant’s case that she served the Respondent diligently for 8 years until 27th November 2015 when she was suspended from work on false, unfounded allegations of gross misconduct and fraud.

4. The Claimant avers that on 8th January 2016, she officially tendered her letter of resignation to the Respondent but was not paid her terminal dues which she particularized as follows:-i.1 month’s salary being service pay for 8 years she worked (385,000. 45 X 8)……………...Kshs 3,080,003. 60ii.Leave pay for the 8 years (385,000. 45 X8)………..Kshs 3,080,003. 60iii.Leave allowance for the last 8 years

5. The Claimant in her statement of Claim therefore sought for the following reliefs:a.Payment of her terminal dues totaling to Kshs. 6,160,000. 72b.The costs of the claimc.Interest on the claims in (a) and (b) above at court rates from January 2016 until payment in full.

6. The Respondent filed its Memorandum of Response dated 30th May 2016 denying that the Claimant was in its employment for 8 years. It maintained that the Claimant worked for it for 7 years.

7. In response to the allegation by the Claimant that it withheld her terminal dues, the Respondent avers that the Claimant’s benefits were all consolidated and formed part of her monthly salary which were paid to her.

8. According to the Respondent, the Claimant is not entitled to the service pay she is seeking by dint of section 35(6) of the Employment Act as she is a member of National Social Security Fund; that the Claimant is not entitled to service pay as her contract was not terminated under section 35(5) of the Employment Act and that even if the Claimant was to be eligible for service pay, the same would be payable at the rate equivalent to a half months salary and not 1 month’s salary as tabulated by the Claimant; that the Claimant forfeited the one month’s salary in lieu of notice pursuant to clause 9 of the Claimant’s contract of employment; that the Claimant was entitled to 21 leave days only in a year which were always taken during school holidays in April, August, November and December and that therefore she is not entitled to leave pay; and lastly, that the Claimant is not entitled to leave allowance since it was not provided for in her contract of employment.

9. The Respondent denied owing the Claimant any terminal dues and prayed the suit be dismissed with costs.

Claimant’s Case 10. The Claimant testified on 12th November 2019 as CW1. She reiterated the averments she made in her Statement of Claim. In addition, the Claimant stated that she never went on leave during her employment and that section 10 of her appointment letter indicated that holiday months were working months.

11. On cross examination CW1 stated that she resigned a day before the disciplinary hearing and that she paid one month’s salary in lieu of notice to the Respondent. The Claimant also confirmed that she is a member of NSSF but contended that she was not aware that the Respondent deducted and remitted NSSF and NHIF.

Respondent’s Case 12. Heidy Judy Bird, the Respondent’s Managing Director testified on 16th November 2021 as RW1 and adopted her witness statements recorded on 12th November 2018 and 8th October 2020 as part of her evidence in chief. She also relied on the Respondent’s documents filed in court.

13. RW1 in her testimony stated that the Respondent is fully compliant with all statutory deductions and that it has always made the statutory payments from the time the Claimant was employed until she resigned.

14. RW1 testified that although the Claimant automatically went on leave during school holidays as was the Respondent’s policy, she also applied for leave during normal school days.

15. RW1 testified that the Claimant is not entitled to the terminal dues she is seeking.

16. On cross examination, RW1 referred to page 96 of the Respondent’s bundle which showed the Claimant’s NSSF deductions.

17. Prisca Mutinda Nzau, the Respondent’s Secretary testified as RW2. According to RW2, employees of the Respondent are entitled to 21 leave days annually and also, that considering the Respondent is a school, they never went to work during school holidays save for the last week to the opening day for preparation for the next term. RW2 in her evidence told the court that the Claimant went on leave just like other employees. She further testified that statutory deductions were made on their salaries of all employees including the Claimant.

18. At the close of the Respondent’s case, the court directed parties to file written submissions. Both parties’ submissions are on record. The Claimant’s submissions are dated 13th June 2022 while the Respondent’s submissions are dated 27th June 2022.

Determination 19. Having considered the pleadings the evidence adduced by the parties as well as the submissions, the only issue that falls for determination is whether the Claimant is entitled to payment of the terminal dues she is seeking.

20. From the pleadings evidence and submissions on record, the circumstances leading to the separation of the Claimant from the Respondent’s employment are not contested. The only issue is the alleged non-payment of terminal dues to the Claimant.

21. In her Statement of Claim, the Claimant prayed for service pay and leave days for the entire period she worked for the Respondent.

22. With regard to service pay, the Claimant in her testimony admitted that she is a member of NSSF. RW1 and RW2 in their evidence stated that the Respondent deducted NSSF contributions from the Claimants’ salary and remitted to NSSF. Also, from the Respondent’s bundle of documents, there is evidence that the Respondent remitted NHIF and NSSF deductions for the Claimant.

23. Service pay is provided for in section 35(5) and (6) of the Employment Act as follows:(5)An employee whose contract of service has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.(6)This section shall not apply where an employee is a member of—(a)a registered pension or provident fund scheme under the Retirement Benefits Act;(b)a gratuity or service pay scheme established under a collective agreement;(c)any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and(d)the National Social Security Fund. [Act No. 3 of 1997]

24. From the provisions of section 35 of the Act the Claimant is not entitled to service pay as she was a member of NSSF. The Claimant has not adduced any evidence that the terms of her contract provided for service pay. I accordingly find that the Claimant is not entitled to service pay.

25. The Claimant further prayed for payment in lieu of leave days for the entire period she worked for the Respondent. According to her, she never went on annual leave during her engagement with the Respondent. The Respondent on its part through its witnesses denied the allegation that the Claimant never went on leave and stated that, by virtue that it is a school, its employees would automatically go on leave during school holidays.

26. I have perused read the Claimant’s appointment letter. Paragraph 4 provides for leave as follows: -“4. Leave“Twenty-one working days timing of all to be determined by the Academy at its discretion. Leave will only be taken during school holidays.”

27. From the foregoing I find that the Claimant has not established that she never went on annual leave during the period she was employed by the Respondent. I therefore find that the Claimant is not entitled to payment in lieu of annual leave as sought.

28. In the end, I find that the Claimant has not proved that she is entitled to the payment of the alleged terminal dues. I thus find the instant suit to be without merit and hereby dismiss it with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 12THDAY OF APRIL 2024MAUREEN ONYANGOJUDGE