[2022] KEELRC 1737 (KLR)
The court found that the discharge voucher, not having been formally introduced into evidence, could not be relied upon to defeat the claim for unfair termination. The claimant's testimony that he was terminated without being given an opportunity to be heard was uncontroverted, as the respondent did not adduce any...
Source-derived case information.
- Citation
- [2022] KEELRC 1737 (KLR)
- Parties
- Claimant: Pascal Otieno; Respondent: JRS Group Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 199 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant; unfair termination established.
- Judges
- S Radido
- Legal Topics
- Unfair Termination, Discharge Voucher, Compensation for Termination, Notice Pay, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pascal Otieno
Claimant
JRS Group Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's cause of action was compromised by the discharge voucher.
- 2 Whether the claimant was unfairly terminated from employment.
- 3 Whether the claimant is entitled to compensation and other terminal dues.
Ratio Decidendi
The court found that the discharge voucher, not having been formally introduced into evidence, could not be relied upon to defeat the claim for unfair termination. The claimant's testimony that he was terminated without being given an opportunity to be heard was uncontroverted, as the respondent did not adduce any evidence to support its claim of desertion or misconduct. Applying sections 35(1)(c) and 41 of the Employment Act, the court held that the termination was procedurally and substantively unfair. The claimant was therefore entitled to compensation equivalent to three months' gross wages and pay in lieu of notice, based on the prescribed minimum wage for a security guard in 2016....
Court Disposition
Judgment for the claimant; unfair termination established.
Orders
- Respondent to pay claimant Kshs 37,791 as compensation for unfair termination.
- Respondent to pay claimant Kshs 10,954 as pay in lieu of notice.
Full Case Text
Judgment text and source record
36 paragraphs
Pascal Otieno v JRS Group Limited (Cause 199 of 2018) [2022] KEELRC 1737 (KLR) (18 May 2022) (Judgment)
Neutral citation: [2022] KEELRC 1737 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause 199 of 2018
S Radido, J
May 18, 2022
Between
Pascal Otieno
Claimant
and
JRS Group Limited
Respondent
Judgment
1. This cause was heard on 22 February 2022. Pascal Otieno (the claimant) testified while JRS Group Ltd (the respondent) did not call any witness.
2. The claimant filed his submissions on 11 March 2022, and the respondent’s submissions were filed on 11 May 2022 (should have been filed and served by 22 April 2022).
3. The court has considered the pleadings, evidence, and submissions.
Whether The Cause Of Action Was Compromised/discharge Voucher? 4. The claimant signed a discharge voucher on 22 March 2017 in consideration of being paid Kshs 7,200/- releasing the respondent from any further claims arising from his contract of employment.
5. During cross-examination, the claimant asserted that he was coerced to sign the voucher.
6. The respondent did not formally introduce the discharge voucher into evidence, and the court finds that no weight should be given to it in respect to the head of claims for unfair termination of employment.
7. The court will however deem the discharge as applying to the claims for breach of contract (underpayments, house allowance, overtime and accrued leave), being claims which are alleged to have recurred on a regular basis.
8. In declining these heads of the claim, the court also notes that some of the claims stretch over 3-years, and that the claimant did not place evidence before the court on the prescribed minimum wages for 2013 to 2015.
Unfair Termination of Employment 9. The claimant testified that he was employed by the respondent as a security guard in September 2013, and that on 12 February 2016, an Assistant Manager terminated his employment when he declined to pay a bribe as demanded by the manager to be allowed back to work after sick-off.
10. The claimant testified that he was not allowed an opportunity to be heard before the termination of employment.
11. The respondent’s pleaded case was that the claimant deserted duties while being investigated for gross misconduct.
12. The respondent did not place any evidence before the court to support the contention that the claimant deserted work or repudiated the contract by failing to appear at work.
13. In consideration of the claimant’s uncontroverted testimony and sections 35(1)(c) and 41 of the Employment Act, 2007, the court concludes that the respondent’s Assistant Manager unfairly terminated the contract.
Compensation 14. The claimant served the respondent for about 3-years and in light of the length of service, the court is of the view that the equivalent of 3-months gross wages as compensation would be appropriate (prescribed minimum wage for a security guard inclusive of house allowance in 2016 was Kshs 12,597/-).
Pay In Lieu of Notice 15. Since no evidence was placed before the court that a written notice of termination of employment was given to the claimant, the court will allow 1-month salary in lieu of notice (prescribed basic wage in 2016 was Kshs 10,954/-).
Certificate of Service 16. A certificate of service is a statutory entitlement and the respondent should issue one to the claimant within 21-days.
Conclusion and Orders 17. The court finds and declares that the respondent unfairly terminated the claimant’s employment.
18. The claimant is awarded:i.Compensation Kshs 37,791/-ii.Pay in lieu of notice Kshs 10,954/-Total Kshs 48,745/-
19. The award to attract interest at court rates from date of judgment until full payment.
20. The respondent to issue a certificate of service within 21-days.
21. claimant to have costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 18TH DAY OF MAY 2022. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor Claimant Owiti Mwalo Odhiambo & Associate AdvocatesFor respondent Juliet Dima & Co. AdvocatesCourt Assistant Chrispo Aura