[2019] KEELRC 1007 (KLR)

REPUBLIC OF KEENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO.485 OF 2016

ROSEMARY ANGALIWA................................................CLAIMANT

VERSUS

TIDY SITE SERVICES LIMITED...............................RESPONDENT

JUDGEMENT

The claimant was employed by the respondent on 14th December, 2011 as cleaner earning Ksh.5, 500. 00 per month. In June, 2013 the wage was increased to Ksh.6, 500. 00 per month. On 17th March, 2016 the claimant fell sick and had to attend hospital and was given 2 weeks off to seek medical treatment. Upon return to work her supervisor Mr Mwai. After two more weeks the claimant reported back again to Mr Mwai who told her to proceed on her annual leave of 21 days. The leave ended on 18th April, 2016 but was told to rest until 1st May, 2016. The claimant kept phone communication with Mr Mwai who was based in Nairobi while her work station was in Nakuru.

On 1st May, 2016 the claimant was adviced that there was no work. The claimant contacted the manager Mr Kariuki who affirmed what Mr Mwai had said.

The salary for April and May, 2016 was not paid. The claimant reported the matter to the labour office that calculated the terminal dues to ksh.140, 486. 00 but paid ksh.19, 750. 00 only.

The claimant is seeking terminal dues for not taking annual leave for 4 years and for unfair termination of her employment. There were underpayments all being ksh.210, 528. 25.

The claimant testified that upon employment by the respondent she was not issued with a written contract of employment and was underpaid. She got sick and was given time off. She was never allowed back at work.

The claimant also testified that in August, 2016 her supervisor Mr Mwai called her back to work and worked for 6 days and then said work had ended.

The claimant reported the matter to the labour officer and who tabulated terminal dues but the respondent disputed the same and only paid ksh.19, 700. 00 which was less what owed in notice pay, underpayments, annual leave and compensation for unfair termination of employment.

Defence

In response, the defence is that the claimant was an employee from 14th December, 2011 as a cleaner and upon request went on medical leave on 9th February, 2016 and was paid the wage for February, and March, 2016 despite being absent from work. The position was replaced as the respondent had contractual obligations to its clients.

On 10th August, 2016 the claimant was contracted on temporary basis to fill in for an employee who had gone on annual leave. In September, 2016 the claimant was engaged for 6 days. All wages for days worked was paid.

The claimant lodged a claim at the labour office and was paid Ksh.19, 759. 00 in full settlement of her claims. a final payment certificate was issued and dated 3rd November, 2016. There are no other claims due and suit should be dismissed.

Erasto Mwai Njeru testified that he is head supervisor with the respondent and worked with the claimant from 14th December, 2011 to 9th February, 2016 when she got time to attend medical treatment. After two months she was replaced. She was later employed on temporary basis. She reported her matter to the labour officer and her dues tabulated and paid and a certificate of payment issue on 3rd November, 2016.

At the close of the hearing both parties agreed to file written submissions. Only the claimant filed on 18th April, 2019.

Both parties agree that the claimant was an employee of the respondent from 14th December, 2011 until 9th February, 2016 when she got sick and was granted time to seek medical attention. Later the claimant was engaged for short periods/days in August and September, 2016.

The claimant has attached a medical note from Rica Medical Clinic and dated 13th March, 2016. She is given 2 weeks off duty with effect from equal date.

Section 30 read together with section 34 of the Employment Act, 2007 requires an employee who is sick or unwell to be given time off to seek medical treatment. Such sick off is with full pay. However the employee is required upon return to produce a medical certificate from a recognised medical institution certifying her sickness and or illness and to justify the time off from work.

In this case of Anne Wairimu Kimani versus Kenya Agricultural Livestock Research Organisation (KALRO) [2017] eKLRthe court held that;

Further to the above, section 34 of the Employment Act, 2007 requires that where an employee is unable to attend work due to illness, sickness or any medical condition, such should be brought to the attention of the employer within a reasonable time. The law gives the condition that the employee should also submit a medical certificate from a medical practitioner. See Dorothy Ndungu versus Machakos University & others [2016] eKLR.

In this case, the medical note submitted by the claimant allowed her and with approval from the employer to take time off work. Upon recuperation and return to work, a medical certificate as required under section 34 of the Employment Act, 2007 was imperative. The medical note and requirement to take two week off is not a document equivalent to the medical certificate required under the law.

The continued absence of the claimant from work and without the submission of the relevant certificate removed her from the work place. As at the time the respondent granted time off following illness and paid the due wage up and until end of March, 2016 the respondent cannot be faulted.

Other employment of the claimant after the end of March, 2016 was remunerated on short term basis. Effectively, employment terminated on 9th February, 2016 and the claimant was paid for February and March, 2016 which then covered for the notice pay due.

There is a minimum wage payable to an employee. An employer cannot pay below the minimum wage and justify the same for being young in business. Such defence is unacceptable.

Where the claimant remained in the employment of the respondent from 14th December, 2011 she was entitled to the minimum wage. The payment of Ksh.5, 500. 00 per month is not justified. The due wage was Ksh.6, 999. 00 per month thus a balance Ksh.1, 499. 00 for 5 months all being Ksh.7, 495. 00 due in the year 2011/2012. Using the wage orders applicable for the period 2011 to the year 2016 the due unpaid wages are as follows;

In the year 2012 to May, 2013 the due wage was Ksh.7, 915. 90 and unpaid wage is Ksh.28, 990. 80;

May, 2013 to May, 2014 due wage was ksh.9, 024. 15 and unpaid wage is Ksh.30, 289. 80;

May, 2014 to May, 2015 wage was Ksh.9, 024. 15 and unpaid is Ksh.30, 289. 80;

May, 2015 to February, 2016 due wage Ksh.10, 107. 10 and due is Ksh.32, 463. 90.

All being Ksh.129, 526. 90 in underpayments.

In this regard therefore, employment terminated at the instance of the claimant. The respondent however ought to have paid the due underpayments and the advice by the labour officer to pay Ksh.140, 486. 00 was not far out.

Accordingly judgement is hereby entered for the claimant for the underpayments at ksh.129, 526. 90 less received amount at Ksh.19, 759. 00 received and acknowledged by the claimant. The claimant is awarded 50% of her costs.

Delivered at Nakuru this 10th day of July, 2019.

M. MBARU

JUDGE

In the presence of:

Court assistants: ……………………………… & ……………………

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