[2022] KEELRC 347 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1726 OF 2015

(Before Hon. Justice Dr. Jacob Gakeri)

OPONYO ETENYI JOHN.............................................................................................CLAIMANT

VERSUS

SAMAN LIMITED/MANASUR ASRIA...............................................................RESPONDENT

JUDGMENT

1. The Claimant initiated this claim by a memorandum of claim dated 14th September 2015 and filed on 28th September 2015 alleging that he was terminated by the Respondent on 9th December 2014 and prays for:

(a) One month’s pay in lieu of notice Kshs.13,118. 71

(b) Unpaid leave Kshs.26,237. 42

(c) Unpaid overtime for 24 months Kshs.36,000. 00

(d) 12 months’ compensation for loss of

employment Kshs.157,424. 65

Total Kshs.231,440. 65

2. The Claimant avers that he was terminated by the Respondent after working for him for two years and as a result suffered severe damages.

3. It is the Claimant’s case that he was a diligent employee and had no disciplinary or other issue. That the Respondent terminated the Claimant for no reason and did not accord him any notice.

4. The Claimant further avers that on the material day, he had gone to dispose of dogs’ waste when the Respondent called out his name and when he came back the Respondent accused him of sleeping at the workplace and sent him away at 11. 30 pm and had to walk in the dark from St. Mary’s to Westlands which he alleges was cruelty.

5. The Respondent filed his reply to the memorandum of claim on 20th February 2017 averring that he paid the Claimant:

i. One month’s pay in lieu of notice Kshs.12,459. 00

ii. Untaken leave Kshs.7,722. 45

iii. Overtime pay Kshs.48,308. 15

6. The Respondent denies that the Claimant was a diligent employee and often breached the terms of his employment.

7. It is the Respondent’s case that the Claimant was found asleep during working hours and thus unfit to render services as a guard and several warnings were issued by the Respondent. That he often reported to work drunk.

8. The Respondent denies that he terminated the Claimant after midnight, thus exposing him to danger. That the allegation is intended to evoke sympathy. He also denies having treated the Claimant in a cruel manner. Finally, the Respondent prays for dismissal of the suit with costs.

Claimant’s Evidence

9. The Claimant adopted the witness statement which rehashes the contents of the memorandum of claim and a cross examined. He could not recall when he was employed by the Respondent. He confined that he was a night guard at the Respondent’s residence at a salary of Kshs.13,000/- per month. The only payslip he availed however show that his salary in 2012 was Kshs.12,802. 15 per month. That the Respondent issued payslips but pay was in cash by the Supervisor Mr. Dismuss.

10. The Claimant confirmed that neither Mr. Dismuss nor Mr. Mansur intimated anything to him about his performance. The witness confirmed that the was not given any warning letter by the Respondent.

11. Although he admitted having been paid terminal dues, he denied having received leave and service pay and denied the contents of the discharge voucher dated 9th December 2014. He disowned his signature on it. He denied having received the sum of Kshs.33,253,84 but could not remember how much he received as terminal dues.

12. CW2, BEATRICE MWAYINZI, the Claimant’s wife confirmed on cross examination that she was unaware of the happenings at the Claimant’s work place but on the material day, he arrived home at 3. 30 am and looking dirty. The witness testified that the Claimant informed her that he had been terminated by the Respondent and had also been chased by thugs on his way home.

13. The Respondent’s witness RM. MANASUR ASRIA adopted his statement and was cross examined. The witness confirmed that he did not give the Claimant a letter of appointment and paid him monthly salary in cash including overtime for the month for the extra hours worked.

14. The witness confirmed that on 9th December 2015 he found the Claimant sleeping at his workplace and had to shake him to wake up. The Claimant’s colleague was present when Mr. Manasur made the discovery. The Claimant was stationed at the back of the compound where he was sleeping on the grass and smelt alcohol.

15. The witness told the Court that he paid the Claimant overtime since the date of employment till termination and had been issued with two written warnings and the others were verbal. That the Claimant had been found asleep several times.

16. The witness confirmed that the did not accord the Claimant a hearing before termination since he had caught him sleeping at the workplace.

17. In re-examination the witness testified that the Claimant received the warning letter dated 24th October 2014 and signed it. That the Claimant acknowledged receipt of payments made on 11th December 2014 including leave and service pay.

18. The Respondent’s witness denied having followed the Claimant after the alleged termination. That the Claimant opted to leave at night on his own accord but returned on 11th December 2014 for his terminal dues and received the same in cash and signed for it.

Submissions

19. None of the parties had filed written submissions by 12th March 2022 when the judgment was written.

Analysis and Determination

20. After careful consideration of the pleadings, oral and documentary evidence on record, the issues for determination are whether: -

a) The Claimant’s termination of employment was unfair;

b) Whether the Claimant is entitled to the reliefs sought.

21. As to whether the Claimant’s termination of employment was unfair, the provisions of the Employment Act provide the basic infrastructure for termination of employment contracts and irrespective of the form the termination takes, it must be justifiable and procedurally fair.

22. Under Section 45 of the Employment Act for a termination of employment to be deemed fair, it must be shown that the reason for termination was not only valid, fair and related to the employee’s conduct, capacity, incompatibility or operational requirements of the employer but also that the termination was conducted in accordance with fair procedure. The onus is on the employer to prove compliance with Section 45 of the Act.

23. Sections 41 and 43 of the Act impose more obligations on the part of the employer as regards the procedure of termination and reason(s) for termination respectively.

24. Finally, Section 47(5) imposes obligations on both employee and the employer. The former is required to prove that an unfair termination of employment or wrongful dismissal has taken place while the latter is required to justify the grounds for termination of employment or wrongful dismissal.

25. Judicial articulations in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, Naima Khamis v Oxford University Press (EA) Limited [2017] eKLR,Walter Ogal Anuro v Teachers Service Commission [2013] eKLRas well asLoice Otieno v Kenya Commercial Bank [2013] eKLRunderline the need to observe the provisions of the Employment Act, above before terminating a contract of employment.

Reason for termination

26. From the evidence on record, the Respondent contends that he terminated the Claimant for sleeping at the place of work. RW1 confirmed on cross examination that on 9th December 2015, he found the Claimant asleep at his place of work and had in fact to wake him up while in the company of the Claimant’s colleague for the night shift. Curiously, the Claimant was sleeping on the grass and gave no reason why he was sleeping while on duty.

27. The witness further confirmed that the incident on 9th December 2015 was not an isolated event. The Claimant had been found sleeping before and a warning dated 24th October 2014 was issued to the Claimant. He had been found asleep. The letter makes reference to another warning.

28. Although the Claimant denied having received the warning letter, RW1 confirmed that he received the letter and acknowledged receipt by signing a copy of the letter.

29. The Respondent’s witness testified that there had been two burglaries in his compound which informed the hiring of two guards for the compound.

30. Having been warned previously in writing and by word of mouth about his sleeping at the workplace and being a security guard, the Claimant’s conduct compromised the security of the Respondent’s compound.

31. For the foregoing reasons the Court is satisfied that the Respondent has on a balance of probabilities demonstrated that he had a valid, fair and justifiable reason to terminate the Claimant’s contract of employment on 9th December 2015 consistent with the provisions of Section 43, 45 and 47(5) of the Employment Act, 2007.

Procedure

32. Section 41 of the Employment Act prescribes the procedural tenets and precepts to be followed in effecting a fair termination of employment. Section 41 is the bedrock of procedural fairness in termination of contracts of employment.

33. InLoice Otieno v Kenya Commercial Bank [2013] eKLRRadido J. expressed himself as follows: –

“In my view, an employer must demonstrate as a matter of fact that it

(i) Explained to the employee in a language the employee understood the reasons why it was considering the termination

(ii) Allowed a representative of the employee, being either a fellow employee or a shop floor representative to be present during the information/explanation of the reasons

(iii) Heard and considered any explanations by employee or his representative.”

34. In CMC Aviation Limited v Mohammed Noor [2015] eKLR the Court of Appeal stated that:

“Unfair termination involves breach of statutory law. Where there is a fair reason for terminating an employee’s service but the employer does it in a procedure that does not conform with the provisions of a statute, that still amounts to unfair termination.”

35. These sentiments underscore, the essence of procedural propriety in termination of employment contracts as ordained by Sections 41 and 45(2)(c) of the Employment Act, 2007.

36. By juxtaposing the law on the facts of the instant case, it is evident that the Respondent did not act in accordance with the statutory provisions.

37. It is the Claimant’s testimony that on the material day, Mr. Manasur came to the compound complaining that the Claimant had been sleeping and ordered him to go away. Mr. Manasur on the other hand testified that he did not order him to leave the compound or follow him as alleged. Be that as it may, it is evident that the Respondent did not act in consonance with the procedural safeguards provided by the provisions of the Employment Act. In fact, Mr. Manasur confirmed on cross examination that he did not give the Claimant a hearing before termination.

38. For the foregoing reasons, it is the finding of the Court that the Respondent has on a balance of probabilities failed to show that the Claimant’s termination of employment was fair.

39. Inevitably, termination of the Claimant’s employment was unfair for want of procedural fairness.

40. Puzzlingly, the Claimant disowned the tabulation dated 9th November 2014, and the Respondent led no evidence to demonstrate the circumstances in which the Claimant signed the document. It is dated 9th December 2014, the date the Claimant was allegedly terminated at night and the Respondent’s witness did to contradict the date.

41. For a discharge voucher or settlement agreement to be effective, it must be demonstrated that the employee executed the same freely and willingly and was seized of all the relevant information and knowledge. See Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR where the Court of Appeal addressed the issue of discharge vouchers or settlement agreements.

42. In light of the foregoing, it is the finding of the Court that the Claimant did not waive his rights to file claims against the Respondent.

Reliefs

43. Having found that the Claimant’s contract of employment was terminated unfairly, I now proceed to determine the reliefs sought:

(a) One month’s salary in lieu of notice Kshs.13,118. 71

44. On cross examination, the Claimant admitted having received pay in lieu of notice. The claim is disallowed.

(b) Unpaid leave Kshs.26,237. 42

45. On cross examination, the Claimant admitted having been paid for leave. He admitted having received payment in cash. The Claimant could not remember how much cash he received from the employer on termination but did not contest the contents of the payslip dated December 2014. The claim is disallowed.

(c) Unpaid overtime for 24 months Kshs.36,000/-

46. On cross examination, the Claimant admitted having been paid for overtime. Similarly, the payslips produced by the Respondent dated May 2014 to December 2014 show that overtime was paid on a monthly basis depending on the services rendered. The claim is disallowed.

(d) 12 months’ salary compensation for loss of employment

47. Having found that the termination of the Claimant’s contract of employment was unfair for want of procedural fairness, the Claimant is entitled to the discretionary reliefs provided by Section 49(1) of the Employment Act subject to the observance of the provisions of Section 49(4) of the Act.

48. In determining the quantum of compensation to award, the Court has taken into consideration the following factors:

i) The Claimant was an employee of the Respondent for about two years and six months and wished to continue.

ii) The Claimant substantially contributed to the termination of employment.

iii) The Respondent paid the Claimant Kshs.33,253. 85 on 11th December 2014.

iv) The Claimant had one warning letter dated 24th October 2014 allegedly for sleeping at the workplace the reason for which the contract of employment was subsequently terminated by the Respondent.

49. In the circumstances, the Court is satisfied that the equivalent of two months’ salary is fair.

50. In the upshot judgment is entered for the Claimant against the Respondent as follows:

(a) Equivalent of two months’ salary.

(b) Costs of this suit.

(c) Interest at Court rates from date of judgment till payment in full.

51. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH DAY OF MARCH 2022

DR. JACOB GAKERI

JUDGE

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

DR. JACOB GAKERI

JUDGE