[2016] KEELRC 944 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT

NAKURU

CAUSE NO. 417 OF 2013

STELLA CHEPKOSGEI.....................................................CLAIMANT

KENYA FARMERS ASSOCIATION LTD.................... RESPONDENT

JUDGMENT

Stella Chepkosgei (Claimant) sued Kenya Farmers Association Ltd (Respondent) on 29 November 2013 alleging unfair termination of employment.

The Respondent filed an Answer to Claim on 7 February 2014, and the Cause was heard on 16 November 2015 and 8 February 2016.

The Claimant filed her submissions on 29 February 2016, while the Respondent’s submissions were only filed on 21 April 2016 (should have been filed by 15 April 2016).

The Court has considered the pleadings, evidence and submissions and adopts the issues for determination as set out in the Claimant’s submissions.

Procedural fairness

Although the Claimant contested the procedural fairness of the termination of her employment, documents produced in Court show that on 23 July 2010, the Respondent wrote to her intimating that she had failed to remit and or explain the whereabouts of Kshs 136,360/-, stock shortage of Kshs 18,825/-, and also alleging alteration of cash sale documents.

The Respondent again wrote to the Claimant on 27 September 2010 to show cause within 14 days why disciplinary action should not be taken against her over unaccounted for Kshs 191,685/-.

The Claimant responded to the show cause notice on 4 October 2010, after which her employment was terminated on 30 November 2010.

Considering the show cause notice and response by the Claimant, the Court is satisfied that the process undertaken by the Respondent met the basic statutory requirements of procedural fairness as envisaged by section 41 of the Employment Act, 2007.

Although the Claimant underpinned her case on section 40 of the Employment Act, 2007, the said section is not relevant or material in her case because she was not declared redundant.

Substantive fairness

Documents produced in Court include a letter dated 8 July 2010, in which the Claimant apologised for taking money from the Respondent and undertaking to repay the same, and a letter dated 4 October 2010 (response to show cause) admitting to taking the money due to family financial dire straits and seeking forgiveness.

With the admission in the two letters, the Court is satisfied that the Respondent had valid and fair reasons to terminate the employment of the Claimant.

Appropriate remedies

Pay in lieu of notice

The Respondent had offered to pay the Claimant 3 months’ pay in lieu of notice and therefore nothing turns on this head of relief.

Service benefits (gratuity)

In terms of section 35(5) and (6) of the Employment Act, 2007, the Claimant is not entitled to service benefits if what she seeks is service pay, considering that she was a member of the National Social Security Fund.

If the service benefits (gratuity) sought was based on contract, no evidential basis for the relief was placed before Court.

Leave dues

The Claimant sought Kshs 230,524/- on account of leave for 20 years.

Leave application forms for 2008, 2009 and 2010 were produced.

The Respondent had indicated that the Claimant would be paid earned leave entitlement. It should compute and pay the commutted amount if there are any outstanding/accrued leave.

Underpayments

The Claimant did not prove that she was underpaid or that Legal Notice No. 98 of 2010 applied to the industry/sector the Respondent was engaged in.

Compensation

With the conclusion on the fairness of the termination of employment, compensation is not available.

Wages for November/December 2010

The Claimant is entitled as of right to wages up to 6 December 2010 when the termination of employment became effective.

The Respondent had also indicated in the letter of termination that the wages would be paid.

The Respondent should compute and pay the wages.

Res judicata

The Respondent raised a defence of res judicata in its Defence but the same was not proved in Court(it was abandoned according to the Respondent’s submissions)

Counterclaim

Before concluding, the Court wishes to note that the Respondent did not raise or prove any counterclaim against the Claimant, though reference was made in passing to the fact that the benefits due to the Claimant were surpassed by her liabilities to the Respondent.

In the Court’s view, when there is a legal challenge as the present one, an employer alleging that an employee left with liabilities ought to prove the same in Court.

Conclusion and Orders

The Court finds and holds that the termination of the Claimant’s employment was fair, and dismisses the cause of action based on unfairness of termination of employment, but awards her and orders the Respondent to compute and pay her as indicated in the termination letter and Respondent’s submissions

(a) 3 months’ pay in lieu of notice Kshs 40,020/-

(b) November/December 2010 wages Kshs 16,008/-

TOTAL Kshs 56,028/-

Claimant to have costs on half scale.

Delivered, dated and signed in Nakuru on this 15thday of July 2016.

Radido Stephen

Judge

Appearances

For Claimant Mr. Onyancha/Ms. Kerubo instructed by Chepkwony & Co. Advocates

For Respondent Ms. Gatu Magana instructed Gatu Magana & Company Advocates

Court Assistant Nixon