[2018] KEELRC 2387 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 829 OF 2014

ROSE MWITA BOKE................................................CLAIMANT

VERSUS

NAKU SACCO SOCIETY LIMITED.................RESPONDENT

JUDGMENT

Introduction

1. The Claimant’s claim brought by way of Memorandum of Claim dated 13th May 2014 and filed in court on 19th May 2014 is for unfair termination of employment. The Respondent filed a Reply on 11th June 2014.

2. When the matter came up for hearing, the Claimant testified on his own behalf and the Respondent called its Chief Executive Officer, James Muchira Chege. Both parties also filed written submissions.

The Claimant’s Case

3. The Claimant states that she was employed by the Respondent as a teller, at a monthly salary of Kshs. 20,000, effective October 2010. She was not issued with a letter of appointment. The Claimant further states that on 5th October 2012 at around 4. 00 pm, she was asked by the Respondent’s Chairman, Secretary and Treasurer to show them how to access the strong room. She gave them the keys to the strong room but did not give them the security code. They told her to go home and not to return.

4. On 6th October 2012, the Claimant was called by the Respondent’s Manager to go and show him how to access the strong room but she declined. She did not go to work after that because she had been threatened.

5. The Claimant avers that her dismissal was without any justifiable cause and in contravention of the Respondent’s Staff Policy Manual as well as the provisions of the Employment Act, 2007.

6. The Claimant’s claim is as follows:

a) Unpaid salary for the months of August, September and October 2012;

b) Unpaid leave days;

c) Severance pay;

d) 12 months’ salary in compensation for loss of employment;

e) Service pay;

f) 1 month’s salary in lieu of notice;

g) Certificate of service;

h) Costs.

The Respondent’s Case

7. In its Reply dated 6th June 2014 and filed in court on 11th June 2014, the Respondent admits having employed the Claimant as a teller at a monthly salary of Kshs. 20,000 from May 2012. The Respondent states that the Claimant was engaged on internship/probation terms.

8. The Respondent avers that on 5th October 2012, the Claimant was caught red handed interfering with the Respondent’s banking system, for which she was reprimanded. The Respondent adds that following the events of 5th October 2012, the Claimant vanished from the Respondent’s premises. The Respondent did not hear from the Claimant until filing of this case.

9. The Respondent denies dismissing the Claimant and reiterates that upon discovery of her attempts to manipulate the banking system, the Claimant disappeared and did not show up the following day, 6th October 2012.

Findings and Determination

10. There are three (3) issues for determination in this case:

a) The nature of the Claimant’s employment with the Respondent;

b) Whether the Claimant deserted duty or was unlawfully dismissed;

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

Nature of Claimant’s Employment

11. In its Reply to the Memorandum of Claim, the Respondent states that the Claimant was engaged on internship/probation terms from May 2012 until October 2012. The Respondent maintains that at the time she left employment, the Claimant was still on probation and is therefore not entitled to any of the remedies sought.

12. The Claimant on other hand, told the Court that she was employed as a teller in October 2010 but was not issued with a letter of appointment. The law places the responsibility of documenting the employment relationship on the employer. Where this responsibility has not been discharged, the Court is at liberty to invoke Section 10(7) of the Employment Act, 2007 and thereby adopt the employer’s testimony with regard to the terms of employment.

13. The Respondent did not issue the Claimant with a letter of appointment and the Court therefore adopts the date of October 2010, pleaded by theClaimant, as the effective date of her employment with the Respondent. In similar vein, the Court rejects the Respondent’s averment that at the time of leaving employment, the Claimant was still on probation. I say so because, there was no written proof of any probationary employment of the Claimant which by law is required to be in writing (see Section 2 of the Employment Act, 2007). At any rate, the Respondent’s witness admitted in cross-examination that the Claimant was a permanent employee of the Respondent.

Desertion or Duty or Unlawful Dismissal?

14. The Respondent states that the Claimant deserted duty from 5th October 2012, after being reprimanded for attempting to manipulate the Respondent’s banking system. On her part, the Claimant testified that she was told to go away after she declined to unprocedurally disclose the access code for the strong room to the Respondent’s officials. None of these officials was called as a witness to counter the Claimant’s testimony and having observed her demeanour, the Court believed the Claimant.

15. Regarding desertion as a ground for dismissal, the law is now firmly settled and it is this; that an employer relying on this ground to justify a dismissal must demonstrate the efforts made towards finding the deserting employee. At the very least, the employer is required to put the deserting employee on notice that dismissal is being considered. This was the holding by Radido J in Stanley Omwoyo v Board of Management Nakuru YMCA Secondary School [2015] eKLRwhich was cited with approval by this Court inDickson Matingi v Db Schenker Limited [2016] eKLR.

16. The Respondent’s Chief Executive Officer, James Muchira Chege told the Court that the Respondent was unable to reach the Claimant but there was no evidence of any specific efforts made. The Court therefore rejects the Respondent’s assertion that the Claimant deserted duty.

17. Regarding the claim that the Claimant had manipulated the Respondent’s banking system, the only thing I will say is that no report of any investigation was presented before the Court. The Court was therefore unable to verify the veracity of the allegations made against the Claimant on this count.

18. Overall, the Court finds that the Claimant was unlawfully and unfairly dismissed from employment and she is entitled to compensation.

Remedies

19. For the foregoing reasons, I award the Claimant six (6) months’ salary in compensation. In making this award, I have considered the Claimant’s length of service and the Respondent’s conduct prior to the dismissal. I further award the Claimant one (1) month’s salary in lieu of notice and salary for 5 days in October 2012.

20. In the absence of any records to show that the Claimant went on leave, the claim for leave pay succeeds and is allowed.

21. The claims for salary for August & September 2012, severance pay and serviced pay were abandoned at the trial.

22. In the end, I enter judgment in favour of the Claimant as follows:

a) 6 months’ salary in compensation.................................. Kshs. 120,000

b) 1 month’s salary in lieu of notice................................................20,000

c) Leave pay for 2 years (20,000/30x21x2)....................................28,000

Total...............................................................................................168,000

Less loan balance owed by the Claimant.......................................(26,000)

Amount payable to the Claimant............................................... 142,000

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

24. The Claimant is also entitled to a certificate of service and the costs of the case.

25. It is so ordered.

DATED AND SIGNED AT NAIROBI THIS 9THDAY OF JANUARY 2018

LINNET NDOLO

JUDGE

DELIVERED IN OPEN COURT AT NAIROBI THIS 16THDAY OF FEBRUARY, 2018

MAUREEN ONYANGO

JUDGE

Appearance:

Mr. Adoli for the Claimant

Mr. Kairu for the Respondent