[2017] KEELRC 1570 (KLR)
The court found that the Claimant's employment was unfairly terminated as the Respondent failed to provide a valid and fair reason for termination and did not follow due process, including giving notice or a hearing. The Respondent's claim of desertion was unsupported by evidence. The Claimant's testimony was...
Source-derived case information.
- Citation
- [2017] KEELRC 1570 (KLR)
- Parties
- Claimant: Peterson Onguti Machuki; Respondent: Mwaneko Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 40 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; compensation and pay in lieu of notice awarded; service pay declined; costs to the Claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Notice Pay, Nssf Contributions, Nhif Contributions, Service Pay, Compensation for Unfair Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peterson Onguti Machuki
Claimant
Mwaneko Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair under the Employment Act, 2007.
- 2 Whether the Claimant is entitled to compensation for unfair termination.
- 3 Whether the Claimant is entitled to pay in lieu of notice.
Ratio Decidendi
The court found that the Claimant's employment was unfairly terminated as the Respondent failed to provide a valid and fair reason for termination and did not follow due process, including giving notice or a hearing. The Respondent's claim of desertion was unsupported by evidence. The Claimant's testimony was unchallenged. The court awarded compensation equivalent to seven months' gross wages, pay in lieu of notice, but declined service pay due to the Claimant's NSSF membership. The court directed the Claimant to pursue unremitted NSSF and NHIF contributions through statutory mechanisms.
Court Disposition
Claim allowed in part; compensation and pay in lieu of notice awarded; service pay declined; costs to the Claimant.
Orders
- Respondent to pay the Claimant Kshs 85,498 as compensation for unfair termination.
- Respondent to pay the Claimant Kshs 12,214 as pay in lieu of notice.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 40 OF 2015
PETERSON ONGUTI MACHUKI CLAIMANT
V
MWANEKO COMPANY LIMITED RESPONDENT
JUDGMENT
1. Despite being served with a hearing notice on 6 December 2016, the Respondent, represented by the Federation of Kenya Employers, failed to appear during the hearing on 21 February 2017 (affidavit of service is on record).
2. The Claimant gave sworn testimony wherein he stated that he was employed by the Respondent in 2007 and that when he refused to sign a new contract (15 October 2014) before consulting a union he had joined (Kenya Union of Commercial, Food and Allied Workers), the Respondent’s Managing Director directed him to return his overall and leave.
3. He contended that he was not given notice of termination or afforded a hearing.
4. On other terms and conditions of employment, the Claimant testified that some of his contributions to the National Social Security Fund and National Hospital Insurance Fund were not remitted.
5. The Claimant filed his written submissions on 24 March 2017 outside the set timeline (explained through letter dated 23 March 2017 to the Deputy Registrar).
6. The Claimant’s testimony going unchallenged and/or uncontroverted, the Court reaches a conclusion that the termination of his employment was unfair (Respondent had contended in its Response filed outside the timelines granted by Court after seeking leave on 26 May 2015 that the Claimant deserted work and therefore was not dismissed but did not prove desertion as a valid and fair reason in terms of sections 43 and 45 of the Employment Act, 2007).
Remedies and Orders
Compensation
7. In terms of section 49(4) of the Employment Act, 2007 and considering that the Claimant served the Respondent for around 7 years, the Court is of the view that the equivalent of 7 months gross wages assessed as Kshs 85,498/- would be fair and appropriate (pay slip for October 2014 show gross pay of Kshs 12,214/-).
NSSF/NHIF contributions
8. The statutes governing the operations of the National Social Security Fund and National Hospital Insurance Fund have very robust mechanisms for dealing with unremitted contributions and the Claimant should use those mechanisms.
Pay in lieu of Notice
9. In terms of section 35(1)(c) of the Employment Act, 2007, the Court awards the Claimant Kshs 12,214/- as pay in lieu of notice.
Service pay
10. The Claimant, by dint of section 35(5) and (6) of the Employment Act, 2007 is not entitled to service pay by virtue of his contributions/membership to the National Social Security Fund.
11. In effect, the Court awards the Claimant
(a) Compensation Kshs 85,498/-
(b) Pay in lieu of Notice Kshs 12,214/-
TOTAL Kshs 97,712/-
12. Claimant to have costs.
Delivered, dated and signed in Nakuru on this 31st day of March 2017.
Radido Stephen
Judge
Appearances
For Claimant Ms. Wachira instructed by Wachira Wanjiru & Co. Advocates
For Respondent Federation of Kenya Employers
Court Assistant Nixon