[2016] KEELRC 1263 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 133 OF 2014

PAUL OCHESO OTENGO CLAIMANT

v

CROWN BEVERAGE COMPANY LTD RESPONDENT

JUDGMENT

The issues for determination in this Cause were set out in the Memorandum of Claim filed in Court on 6 May 2014 and they are

whether the dismissal of the Claimant was unfair

whether the Claimant is entitled to notice pay, overtime and compensation.

The Claimant sought a whopping Kshs 6,244,551/30 in total.

The Respondent filed a Response through the Federation of Kenya Employers on 24 July 2014, and the Cause was heard on 23 April 2015 when the Claimant testified.

The Respondent’s case was set for 9 July 2015, and later 9 November 2015 but no witnesses were called.

The Court also urged the parties to attempt out of court settlement but no settlement was reached.

The Claimant filed his submissions on 2 December 2015, while the Respondent’s submissions were not on file by 29 January 2016 as was directed.

Whether dismissal was unfair

The Claimant testified that on 11 May 2013 he was informed by his Manager (Richard Egal) that the vehicle he had been driving was up for sale and therefore he should wait at home to be called. He waited for 2 months but he was not called and when he inquired in July 2013, he was sent on 21 days leave.

On resumption after the leave, he was issued with a dismissal letter dated 25 July 2013, at the reception.

On why the dismissal was unfair, the Claimant testified that he was not afforded an opportunity to be heard nor given notice of termination. He denied that he was absent without permission as alleged in the dismissal letter.

The Claimant’s testimony remains unchallenged and uncontroverted.

The Court is therefore satisfied that the Claimant has met the low threshold obligation placed upon employees by section 47(5) of the Employment Act, 2007, that there was unfair termination of employment.

The Claimant’s testimony that there was no hearing similarly remains uncontested, and the Court reaches the conclusion that the dismissal was procedurally unfair.

Because the Respondent did not call any witnesses to prove the reasons for dismissal, and that those reasons were valid and fair in terms of sections 43 and 45 of the Employment Act, 2007, the Court also finds the dismissal substantively unfair.

Notice pay

In terms of section 35(1)(c) of the Employment Act, 2007 and clause 17 of the employment contract, the Claimant is entitled to 1 month pay in lieu of notice.

At the time of dismissal, the Claimant’s basic pay was Kshs 17,880/-.

Overtime (normal/off duties/public holidays)

The contract of employment provided for the normal working hours.

The Claimant’s testimony that he used to report at 5. 00am and leave at 9. 00pm was not controverted or challenged through attendance records or rebutting testimony.

The testimony by the Claimant that he used to work during public holidays or that he used to travel over the country distributing the Respondent’s products were also not rebutted.

In the Rejoinder, the Claimant admitted that the overtime claims were computed using a wrong salary, but by time of close of hearing, the correct computations had not been disclosed through an amendment.

However, with the material placed before Court, and considering no amendments were made, the Court declines to award overtime as computed.

Compensation

The Court has reached a conclusion that the dismissal of the Claimant was unfair, and considering that he served the Respondent for about 10 years, the Court assesses the equivalent of 12 months gross wages as fair compensation.

Loss of prospective future earnings

No contractual or legal basis for the Kshs 3,432,960/- sought on account of this head of claim was laid and the Court finds the claim legally untenable.

The discharge voucher

The Respondent had advanced a defense in paragraph 4 of its Response that the Claimant accepted Kshs 15,077/- as full and final benefits, and discharged it.

However, this contention was not taken up during cross examination nor the contents of the discharge proved in Court, despite the Claimant joining issue on the contention in paragraph 10 of the Reply to Statement of Defence.

Conclusion and Orders

The Court finds and holds that the dismissal of the Claimant was unfair and awards him and orders the Respondent to pay him

1 month pay in lieu of Notice Kshs 17,880/-

Compensation Kshs 214,560/-

TOTAL Kshs 232,440/-

Because the Claimant was paid Kshs 15,077/-, the amount should be subtracted from the award herein.

Claimant to have costs.

Delivered, dated and signed in Nakuru on this 6th day of May 2016.

Radido Stephen

Judge

Appearances

For Claimant Mr. Bichanga instructed by Korongo & Co. Advocates

For Respondent Mr. Masese, Senior Legal Officer, Federation of Kenya Employers

Court Assistant Nixon