[2019] KEELRC 2427 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 2295 OF 2014

PATRICK ASUMA..........................................................CLAIMANT

VERSUS

ARM CEMENT LIMITED......................................RESPONDENT

JUDGMENT

Introduction

1. The claimant filed this suit against the respondent for unfair dismissal from employment of 10 months as Security Guard. He therefore prayed for the following reliefs:-

i. One month salary in lieu of notice = Kshs.8,100. 00

ii. Service for the years worked calculated as Kshs.8,100. 00

iii. Damages for wrongful/unfair termination (12,000 x 12) = Kshs.144,000

iv. In the alternative be reinstated to his position and be paid the salary he could have earned in the months he has been off duty if it were not for the termination

v. Cost of the suit.

vi. Any other relief this Honourable Court may deem fit to award under the circumstances.

2. The respondent however, denied the alleged unfair dismissal and averred that the claimant was fairly dismissed for a valid reason and after being accorded a chance to defend himself. She therefore prayed for the suit to be dismissed with costs.

3. The suit was heard on 18. 10. 2018 when the claimant testified as Cw1 but the respondent never attended the hearing despite her lawyer being served with a Hearing Notice by the Court. After the hearing, only the claimant filed written submission, which I have considered herein.

Claimant’s Case

4. Cw1 testified that he was employed by the respondent as a Security Guard on 11. 10. 2013 earning Kshs.12,000 gross pay per month. On 16. 8.2014, he reported to work at respondents Cement plant and took over from a supervisor, Mr. Wellington Kasimiri at 9. 30 p.m, after walking round the station and signing the O.B. to confirm everything was in order. In the morning, he handed over to Mr. Mulwa Kitheka and Mr. Philip Lang’at (both supervisors of shift 1) at 5. 30 a.m after inspecting the premises and confirmed that all was okay by signing the O.B. Cw1, however, stated that it was not normal for two guards to take over duty from him as it happened on that day.

5. Cw1 further testified that, on 18. 8.2014, he reported to work and took over form Mr. Kasimir as usual but after working for 6 hours he was informed by his colleague, Mr. Thomas Penda that some cables had been stolen from the company store. On 20. 8.2014, he was suspended for 7 days but when he reported back on 27. 8.2014 he was told that investigations were not yet complete. However, on 28. 8.2014, he received a call from the office telling him to go for his dismissal letter, which he did.

6. Cw1 further testified that he was never served with any show cause letter or accorded any disciplinary hearing before the dismissal. That he was not charged with any criminal offence or shown any evidence of the allegedly stolen goods. That he was also not paid his terminal dues after the dismissal. He therefore contended that the dismissal was unfair and prayed for the reliefs sought.

Analysis and Determination

7. There is no dispute from the material presented to me that the claimant was employed by the respondent from 11. 10. 2013 until 28. 8.2014 when he was terminated. The issues for determination are:

(a) Whether the dismissal was unfair and unjustified;

(b) Whether the reliefs sought should issues.

Unfair unjustified termination

8. Under section 45(2) of the Act, termination of employment contract of an employee is unfair if the employer fails to prove that it was grounded on valid and fair reason and that it was done after following a fair procedure. A reason is valid and fair if it relates to the employees conduct, capacity and compatibility or based on the employers operational requirements. Procedure, on the other hand is fair if it accords to equity and justice by according the employee a hearing before the dismissal and on any appeal or review preferred, paying the employee any accrued benefits and awarding him/her a certificate of service.

Reason for termination

9. Under section 43(1) of the Employment Act, the burden of proving the reason for terminating the employees contract of service lies with the employer. In this case, the employer never tendered any evidence and as such, I return that the termination of the claimant’s contract was terminated without any valid reason and was therefore not justified.

Procedure followed

10. Under section 41 of the Act, before terminating the employment contract on account of misconduct, poor performance or physical incapacity, the employer must first explain the reason to the employee in a language he understands and in the presence of another employee or shop floor union official of the employee’s choice and thereafter accord the two a chance to air their representations before the termination is decided. The burden of proving that a fair procedure was followed lies with the employer. In this case, no evidence was adduced to prove that the mandatory procedure provided by section 41 of the Act was followed. Consequently, I return that the evidence by the claimant that he was terminated without being accorded a hearing is not contested and as such, his termination was unfair.

Reliefs

11. Under section 49 of the Act, I award the claimant one month salary in lieu of notice plus 3 month’s salary compensation for the unfair termination. In awarding the said compensation, I have considered the fact that the clamant had served for less than one year and that with due diligence, he could secure another job within a short period.

12. The claim for service pay is dismissed because the claimant never completed one year of service.

Conclusion and Disposition

13. I have found that the termination of the claimant’s employment contract was unfair and unjustified. Consequently I enter judgment for him in the following terms:-

(a) Notice ……………………………………12,000

(b) Compensation…………………....………36,000

Total 48,000

======

The claimant will also have costs and interest at courts rate from the date hereof. The decreed sum will however be paid subject to statutory deductions.

Dated, Signed and Delivered in Open Court at Nairobi this 31stday of January 2019

ONESMUS N. MAKAU

JUDGE