[2017] KEELRC 1934 (KLR)
The court found that the Claimant's termination was involuntary and resulted from the loss of a client contract, constituting redundancy. The Respondent failed to comply with the mandatory procedures under section 40 of the Employment Act, 2007, including notice and payment of redundancy dues. The Claimant's...
Source-derived case information.
- Citation
- [2017] KEELRC 1934 (KLR)
- Parties
- Claimant: Samuel Otieno Owilli; Respondent: Riley Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 645 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the Claimant. Termination declared unfair. Monetary awards granted as claimed.
- Judges
- MSA Makhandia
- Legal Topics
- Redundancy, Unfair Termination, Minimum Wage, Overtime Pay, Leave Entitlement, Statutory Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Otieno Owilli
Claimant
Riley Services Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment amounted to redundancy and if due process was followed.
- 2 Whether the Claimant was entitled to payments for notice, wages, gratuity, leave, underpayments, overtime, compensation, and refunds as claimed.
- 3 Whether the Respondent complied with section 40 of the Employment Act, 2007 regarding redundancy.
Ratio Decidendi
The court found that the Claimant's termination was involuntary and resulted from the loss of a client contract, constituting redundancy. The Respondent failed to comply with the mandatory procedures under section 40 of the Employment Act, 2007, including notice and payment of redundancy dues. The Claimant's evidence was unchallenged, and the court accepted his claims regarding underpayment, overtime, leave, gratuity, and other entitlements. The court awarded the Claimant the sums claimed, including compensation for unfair termination, as the Respondent did not follow due process for redundancy.
Court Disposition
Judgment for the Claimant. Termination declared unfair. Monetary awards granted as claimed.
Orders
- Respondent to pay the Claimant Kshs 11,633.55 as pay in lieu of notice.
- Respondent to pay the Claimant Kshs 11,633.55 as October 2013 wages.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 645 OF 2014
SAMUEL OTIENO OWILLI CLAIMANT
v
RILEY SERVICES LIMITED RESPONDENT
JUDGMENT
1. This is an undefended Cause.
2. The Respondent’s Human Resources Manager was served with Summons on 30 January 2015, but no Response was filed. A hearing notice was also served and acknowledged on 9 March 2016.
3. The Claimant gave sworn testimony and stated that he was employed by the Respondent on 19 July 2010 as a night watchman. He produced some of his pay slips which indicate that at time of separation, he was earning a basic pay of Kshs 9,012/-.
4. On the conditions and terms of employment, the Claimant stated that he was paid house allowance only once, had outstanding leave by time of separation, was owed uniform refund which had been deducted, worked overtime (72 hours per week instead of 52 hours per week) and was paid below the prescribed minimum wages (applicable Legal Notices pleaded).
5. As to the circumstances of separation, the Claimant produced a notice of termination of employment and the reason given therein was the client he was assigned to on guard duties (Sameer Africa Ltd) had terminated the contract with the Respondent and contracted the guarding services to a different company.
6. The separation was therefore involuntary on the part of the Claimant. This was a case of redundancy and the Respondent ought to have complied with the conditions outlined in section 40 of the Employment Act, 2007.
7. The Claimant’s pleadings and evidence remaining unchallenged and/or uncontroverted, the Court finds for him as claimed.
8. Because of the 3 or so years of service, the Court will award the equivalent of 4 months gross wages as compensation.
Conclusion and Orders
9. The Court finds the termination of the Claimant’s employment on account of redundancy unfair and awards him and orders the Respondent to pay him
(a) Pay in lieu of notice Kshs 11,633/55
(b) October 2013 wages Kshs 11,633/55
(c) Gratuity Kshs 21,011/40
(d) Leave Kshs 32,391/25
(e) Underpayments Kshs 108,894/10
(f) Overtime Kshs 203,693/80
(g) Compensation Kshs 37,489/60
(h) Uniform refund Kshs 3,315/-
(i) RIFA refund Kshs 3,900/-
TOTAL Kshs 433,962/25
10. Claimant to have costs.
Delivered, dated and signed in Nakuru on this 20th day of January 2017.
Radido Stephen
Judge
Appearances
For Claimant Mrs. Ndeda instructed by Ndeda & Associates
Court Assistant Nixon/Daisy