[2020] KEELRC 1584 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 761 OF 2017

PATRICK KALU LEWA........................................................................CLAIMANT

VS

MACKENZIE MARITIME E.A. LTD.............................................RESPONDENT

JUDGMENT

Introduction

1. By a Memorandum of Claim dated 21st September 2017 and filed in court on even date, the Claimant seeks compensation for unlawful termination of employment.

2. The Respondent filed a Response on 3rd November 2017 to which the Claimant responded on 21st November 2017.

3. When the matter came up for hearing, the Claimant testified on his own behalf and the Respondent called its Human Resource Manager, Lily Phidiliah Wanjugha Mwasho. The parties also filed written submissions.

The Claimant’s Case

4. The Claimant states that he was employed by the Respondent as a Driver from 1st July 2013 until 4th February 2016. He earned a monthly salary of Kshs. 29,070.

5. The Claimant claims that on 4th February 2016, he reported to work as usual but his employment was terminated verbally.

6. The Claimant’s case is that the termination of his employment was unlawful and unfair as there was no valid reason for it and he was not allowed an opportunity to be heard. His claim is as follows:

a) One month’s salary in lieu of notice……………………………….……Kshs. 29,070

b) Leave pay for 2 years…………………………………………………………….………46,956

c) Service pay @ 15 days’ for every completed year…………………….…..11,180

d) 12 months’ salary in compensation…………………………………….………348,840

e) Overtime worked for 2 years………………………………………………….…..222,400

f) Public holidays………………………………………………………………………….….16,149

g) Certificate of service

h) Costs plus interest

The Respondent’s Case

7. In its Response dated 3rd November 2017 and filed in court on the same date, the Respondent states that the Claimant was engaged as a Driver on contractual basis from 1st July 2013 until 3rd October 2013.

8. The Claimant was re-engaged in the same position from 1st September 2014 until 31st August 2015 and subsequently from 1st September 2015 until 30th November 2015. From 1st November 2015, the Claimant was promoted to the position of Designated Driver.

9. The Respondent avers that upon the lapse of his contract on 30th November 2015, the Claimant was by letter dated 3rd February 2016, informed of the Respondent’s decision not to renew the contract. The Claimant’s final dues were tabulated but the Claimant failed to pick his last cheque and letter of discharge.

Findings and Determination

10. There are two (2) issues for determination in this case:

a) Whether the Claimant has made out a case of unlawful termination of employment;

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

Unlawful Termination?

11. The Respondent’s defence to the Claimant’s claim is that the Claimant was employed on fixed term contracts and that his employment came to an end upon expiry of the last such contract.

12. The Respondent’s Human Resource Manager, Lily Phidiliah Wanjugha Mwasho however told the Court that the Claimant worked until 3rd February 2016. From the record, the Claimant’s last contract was to end on 30th November 2015. It is therefore evident that the Claimant continued to work after expiry of the said contract.

13. The Respondent did not bother to explain under what circumstances the Claimant continued to work beyond 30th November 2015. The only inference I will draw is that the Claimant’s contract was renewed by conduct of the parties and the Respondent’s defence that the Claimant’s employment came to an end by effluxion of time cannot stand.

14. In the circumstances, I find that the Respondent’s letter to the Claimant dated 3rd February 2016 by which the Respondent purported to notify the Claimant of the decision not to renew his contract came late in the day. As a result, the said letter which came two months after the expiry date of the last contract cannot serve as a legitimate mode of termination of employment.

15. Ultimately, I find and hold that the Respondent terminated the Claimant’s employment without valid reason and in defiance of due procedure. The Claimant is thus entitled to compensation.

Remedies

16. In the result, I award the Claimant six (6) months’ salary in compensation. In arriving at this award, I have taken into account the Claimant’s length of service as well as the Respondent’s conduct in the termination transaction.

17. I further award the Claimant one (1) month’s salary in lieu of notice.

18. No evidence was adduced to support the claims for overtime and public holidays which therefore fail and are dismissed.

19. The claims for leave pay and service pay were abandoned at the trial.

20. Finally, I enter judgment in favour of the Claimant as follows:

a) 6 months’ salary in compensation…………………………………….Kshs. 174,420

b) 1 month’s salary in lieu of notice…………………………………………………29,070

Total……………………………………………………………………………………….203,490

21. This amount will attract interest at court rates from the date of judgment until payment in full.

22. The Claimant is also entitled to a certificate of service plus costs of the case.

23. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 20TH DAY OF FEBRUARY 2020

LINNET NDOLO

JUDGE

Appearance:

Mr. Ngonze for the Claimant

Mr. Otieno for the Respondent