[2018] KEELRC 2422 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 114 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

SECURITY WORKERS’ UNION.............................................CLAIMANT

-Versus-

MODERN SECURITY HOLDING......................................RESPONDENT

JUDGMENT

The Claimant is a trade union registered in Kenya under the Labour Relations Act to represent industrial interests of employees engaged in the private security sector. It has filed this suit on behalf of Jossy Wafula Nikodemus (the Grievant)against the Respondent, a private security company conducting security business in Kisumu, who had previously engaged the Grievant as a security guard.

In the Memorandum of Claim filed on 21st April 2015 the Claimant Union avers that the Grievant was employed by the Respondent on 4th January 2008 as a security guard and served the Respondent until he tendered his resignation notice dated 10th July 2014 to take effect on 10th August 2014. It is averred that the Respondent failed to pay the Grievant his terminal dues in spite of demand thereof by both the Claimant and the Grievant.

The Claimant union seeks judgment against the Respondent as follows-

Underpayment of Wages –

1. That during May 2011 – April 2012 = 12 months

Legal wages Kshs. 8,463 x 12 = 101,550. 00

Wages paid Kshs. 6,000 x 12 = 72,000. 00

Underpayment arrears = 29,556. 00

See legal notice 63 Appendix JW 3 A

2. That during May 2012 – April 2013 = 12 months

Legal wages Kshs. 9,571 x 12 = 114,852. 00

Wages paid Kshs. 6,000 x 12 = 72,000. 00

Arrears = 29,556. 00

See legal notice no. 71, annexure 4

3. That during May 2013 – April 2014 = 12 months

Legal wages Kshs.10,912 x 12 = 130,9322. 00

Wages paid Kshs. 6,000 x 12 = 72,000. 00

Arrears = 58,932. 00

See legal notice no. 196, annexure JW.5

House Allowance Arrears

1. May 2011 – April 2012

Wages Kshs.8,463 x 15 x 12

100

1,269 x 12 = 15,233. 00

See Appendix JW 6H

2. May 2012 – April 2013

Wages Kshs.9,571 x 15 x 12

100

1,436 x 12 = 17,232. 00

See Appendix JW 7

3. That during May 2013 – April 2014

Wages Kshs.10,912 x 15 x 12

100

1,636 x 12 = 19,642. 00

See Appendix JW 8

Gratuity

Basic during the year 2014

Kshs. 10,912 x 18 x 6 years

26 days

7,554 x 6 years = 45,326. 00

See Appendix JW 9

GRAND TOTAL

1. Underpayment = 131,340

2. House Allowance = 52,107

3. Gratuity Payment = 45,326

Grand Total 228,773

The Respondent filed a Statement of Defence on 16th June 2015 in which it states that upon the Grievant’s resignation he was paid his full terminal benefits. The Respondent further states that the Grievant is not entitled to gratuity as he was a member of both NSSF and NHIF. It is further the Respondent’s averment that the Grievant is not entitled to house allowance as the same was paid to him together with salary.

The Case was heard on 6th October 2016 when the Claimant’s evidence was taken and adjourned to 29th November 2016 for the Respondent’s case. On 29th November 2016 the case was again adjourned to 9th February 2017. When the case came up for hearing of defence case on 9th February 2017 Mr. Anyumba, counsel for the Respondent informed the court that he had been unable to secure the attendance of a witness for the Respondent. He opted to close the Respondent’s case and to rely on pleadings and written submissions. The parties took directions on timelines for filing and exchange of written submissions. The Claimant filed written submissions but the Respondent did not even after being given opportunity to do so on 9th and 27th March 2017.

Claimant’s Case

The Claimant testified that he was employed by the Respondent on 4th January 2008 at a salary of Kshs. 4,500. At the time of resignation his salary was Kshs. 6’000. He testified that he gave notice of resignation on 10th July 2014 and worked until 10th August 2014. He testified that as at the time he left employment on 10th August 2014 he had not been paid arrears of salary of 3 months. He testified that since leaving employment he had been paid by instalments and the arrears were cleared. He was therefore claiming underpayments, house allowance and gratuity only.

The Claimant testified that he was never issued with any payslip and payment was made in cash. He stated that he was not a member of NSSF although NSSF contributions were deducted from his wages but not remitted by the Respondent. He testified that the Respondent paid his NHIF. He prayed for judgement as tabulated in his Claim.

Under cross-examination the Claimant testified that the payment of his arrears was made at the union’s office and the parties signed documents at the union’s office. A total of Kshs. 18,000 was paid to him. He stated that he did not have documents to prove any of his averments. He stated that the terminal dues he was claiming was as tabulated by the union and he did not have the details of how the amount was arrived at. He stated that he did not report the dispute to the labour office but reported to the union. He denied that he was not an employee of the Respondent.

Determination

I have carefully considered the pleadings and evidence on record. I have also considered the submissions filed by the Claimant on 28th November 2016 and the Claimant’s Final Submissions filed on 9th March 2017.

The Respondent did not adduce any evidence although it filed a defence. In the defence it is pleaded that the Claimant was paid all his terminal benefits and salary. No evidence was adduced to prove the same.

During cross-examination, Mr. Anyumba examined the Grievant at length on documentation. It is the responsibility of the employer to produce employment records as provided in both section 10 and 74 of the Employment Act. It would however have been different had the Respondent not filed a defence at all as the burden to prove all the averments made by the Grievant would have remained with the Claimants. Section 10(6) as read with section 10(7), section 47(5) and 74(1) shift the burden of proof of the averments in the Defence to the Respondent.

Based on the foregoing the court finds that the Grievant resigned from employment by letter dated 10th July 2014 due to delay in payment of his salary for May to July 2014. It is further the court’s finding that the Grievant was subsequently paid the arrears of Kshs. 18,000 by the Respondent through the Claimant’s office as was admitted by the Grievant.

Upon considering the unchallenged evidence of the Grievant, the court finds that he was underpaid as set out in the Claim based on the statutory minimum rate of pay for the relevant period as set out in the various gazette notices for 2011, 2012 and 2013. I further find that the Grievant having worked for more than 5 years, is entitled to both house allowance and gratuity under rules 5 and 17 of the Regulation of Wages (Protective Security Services) Order, 1998.

Conclusion

In Conclusion, I enter judgment for the Grievant against the Respondent as follows-

Underpayments Kshs. 131,340

House allowance Kshs. 52,107

Gratuity Kshs. 45,326

TotalKshs. 228,773

Orders accordingly.

DATED AND SIGNED THIS 4TH DAY OF JANUARY 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED ON THIS 1ST DAY OF FEBRUARY 2018

MATHEWS NDERI NDUMA

JUDGE