[2019] KEELRC 2470 (KLR)
The court found that the Respondent failed to provide any reason for terminating the Claimant’s employment and did not subject him to any disciplinary procedure as required by law. The Respondent did not call any evidence to contradict the Claimant’s account. Consequently, the court held that the termination was...
Source-derived case information.
- Citation
- [2019] KEELRC 2470 (KLR)
- Parties
- Claimant: Simon Bandari Chilumo; Respondent: China Road and Bridge Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 529 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the Claimant.
- Judges
- L Ndolo
- Legal Topics
- Unlawful Termination, Compensation for Unfair Dismissal, Notice Pay, Annual Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Bandari Chilumo
Claimant
China Road and Bridge Corporation
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant’s employment was lawful and fair.
- 2 Whether the Claimant is entitled to the remedies sought.
Ratio Decidendi
The court found that the Respondent failed to provide any reason for terminating the Claimant’s employment and did not subject him to any disciplinary procedure as required by law. The Respondent did not call any evidence to contradict the Claimant’s account. Consequently, the court held that the termination was both substantively and procedurally unfair. The Claimant was therefore entitled to compensation for unfair termination, notice pay, and prorated leave. The claim for punitive damages was dismissed for lack of basis.
Court Disposition
Judgment for the Claimant.
Orders
- The Respondent shall pay the Claimant six months’ salary in compensation (Kshs. 113,772).
- The Respondent shall pay the Claimant one month’s salary in lieu of notice (Kshs. 18,962).
Full Case Text
Judgment text and source record
50 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 529 OF 2016
SIMON BANDARI CHILUMO......................................................CLAIMANT
VS
CHINA ROAD AND BRIDGE CORPORATION....................RESPONDENT
JUDGMENT
Introduction
1. The Claimant’s claim brought by a Memorandum of Claim dated 5th July 2016 and filed in court on even date is for compensation for unlawful termination of employment.
2. The Respondent filed a Response on 11th October 2016 but did not call any witness. The Claimant testified on his own behalf. Both parties filed written submissions.
The Claimant’s Case
3. The Claimant states that he was employed by the Respondent as a mason from 13th January 2015 until 11th November 2015 when his employment was terminated.
4. The Claimant avers that the termination of his employment was unlawful and unfair. He therefore claims the following:
a) One month’s salary in lieu of notice……………………………………Kshs. 18,962
b) Annual leave…………………………………………………………………..18,962
c) 12 months’ salary in compensation……………………………………………227,544
d) Punitive damages
The Respondent’s Case
5. In its Response dated 7th October 2016 and filed in court on 11th October 2016, the Respondent states that there was no employment relationship between itself and the Claimant.
6. The Respondent therefore maintains that the Claimant’s claim is without basis and ought to be struck out.
Findings and Determination
7. Although the Respondent in its Response pleads that there was no employment relationship between itself and the Claimant, this line of defence appears to have been abandoned altogether in the final submissions filed on behalf of the Respondent on 23rd October 2018.
8. There are therefore only two (2) issues for determination in this case:
a) Whether the termination of the Claimant’s employment was lawful and fair;
b) Whether the Claimant is entitled to the remedies sought.
The Termination
9. The Claimant told the Court that he lost his job card in July 2015. He reported the loss to his supervisor, one Mr. Hans who issue him with another job card. After three months, Hans told the Claimant to go home because operations had been scaled down.
10. The Claimant kept checking on the status of his employment but he was not called back to work. He was not issued with a termination letter but after 11th November 2015, he did not work for the Respondent.
11. The Respondent did not call any evidence to contradict the Claimant’s testimony and the Court had no reason to disbelieve the Claimant, regarding the circumstances leading to his termination.
12. It is evident that the Respondent did not offer any reason for terminating the Claimant’s employment nor did it subject the Claimant to any disciplinary procedure as required in law.
13. The Court therefore finds and holds that the termination of the Claimant’s employment was substantively and procedurally unfair and he is entitled to compensation.
Remedies
14. In light of the foregoing findings, I award the Claimant six (6) months’ salary in compensation. In arriving at this award, I have taken into account the Claimant’s length of service as well as the Claimant’s failure to observe due procedure in effecting the termination.
15. I further award the Claimant one (1) month’s salary in lieu of notice and prorate leave for ten (10) months.
16. No basis was laid for the claim for punitive damages which therefore fails and is dismissed.
17. Cumulatively, I enter judgment in favour of the Claimant as follows:
a) 6 months’ salary in compensation…………………………….Kshs. 113,772
b) 1 month’s salary in lieu of notice…………………………………….18,962
c) Prorata leave for 10 months (18,962/30x1. 75x10)…………………….11,061
Total……………………………………………………………………..143,795
18. This amount will attract interest at court rates from the date of judgment until payment in full.
19. The Claimant will have the costs of the case.
20. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF JANUARY 2019
LINNET NDOLO
JUDGE
Appearance:
Mr. Otwere for the Claimant
No appearance for the Respondent