[2015] KEELRC 221 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.1132 OF 2013

STELLA MORAA ONDARI ….…………………………. CLAIMANT

VERSUS

GOODWILL PHOTO LAB LIMITED …….….……….…… RESPONDENT

JUDGEMENT

1. The issues in dispute are the unlawful and unfair termination/dismissal of the Claimant and the non-payment of terminal dues and benefits.

2. On 18th July 2013 the Claimant filed her claim herein. The claim is that in December 2011 the Claimant was employed by the Respondent as a photographer/Saleslady at a salary of Kshs.18,000. 00 per month. She served diligently until 28th march 2012 when she was dismissed. That the dismissal was unlawful as there was no notice, there was no justice as she was not given a hearing, terminal dues were not paid, and the Respondent refused to give her a written contract and Certificate of Service. That this was in violation of the employment act and seek the following;

One month notice pay at Kshs.18, 000. 00;

Salary arears for March 2012 at Kshs.15, 000. 00;

Leave days at 1. 75 days at kshs.4, 200. 00;

House allowance at kshs.12, 000. 00; and

12 months compensation at kshs.216, 000. 00.

3. In evidence, the Claimant testified that upon employment by the respondent, she was paid her salary in cash in an envelope and singed on a book. She had no written contract and house allowance was not paid. In March 2012 while at work, since it was almost month end, she asked for her employment contract which was not issued. The next day while she was walking into her office and while still at the reception area, the Respondent officer Mr Wanjau told the other staff to leave and told the Claimant that there was missing stock and needed these traced. Mr Wanjau then told the Claimant to leave the premises and never to be seen there again. She went to the labour office to report the matter and the Respondent was invited to attend a meeting but went a day before and when the Claimant appeared the day of the scheduled meeting, the labour officer adviced her to settle the matter.

4. The claim is also that the alleged missing stock was not true as the Respondent was responsible for taking the stock and account for it. The Claimant only at the photo studio to do her work. Before the dismissal, she was not given a hearing to explain herself over the matter hence her claim before court.

5. That her salary was basic at Kshs.18, 000. 00 and no house allowance was paid. She did not take leave and the salary for March 2012 was not paid. There was no record of missing stock and this was not investigated to prove that the Claimant was responsible for any missing stock.

Defence

6. In defence, the Respondent admitted that they had employed the Claimant at kshs.12, 000. 00 gross salary per month and not kshs.18, 000. 00 as alleged. On 28th March 2012 the Claimant was asked to account for stocks that went missing while on duty and instead of doing so, suddenly and without notice abandoned her duties and terminated her employment. the Claimant left without accounting for stocks amounting to kshs.8,067. 00, she failed to hand over all stocks, books and records or sales in her custody or giving notice before abandoning her duties. The Claimant was not owed any leave at the time or a house allowance. Since the Claimant abandoned her employment, no compensation is due.

7. In evidence, the Respondent called James Wanjau the proprietor of the respondent. That the Claimant was an employee of the Respondent until she abandoned her duties without notice. She was paid Kshs.12, 000. 00 and given a pay slip. The Claimant was in the sales department with another employee and while she was on duty, stocks got lost. The witness called the Claimant and told her of the missing stocks and wanted an explanation but she became defensive saying that she was not a thief. The Claimant then stormed out and walked away. The Respondent lost over Kshs.8, 000. 00 in stocks and the Claimant did not give an explanation.

8. The witness also testified that when the Claimant was employed, the issue of house allowances was not discussed and leave was not due. The Claimant lied about her salary as this was paid at Kshs.12, 000. 00. The matter was not reported to the police as the Claimant went to the labour office and later refused to attend at the hearing.

Submissions

9. In submissions, the Claimant stated that before the Claimant was terminated the provisions of section 41 of the Employment Act (the Act) were not adhered to she was not given a hearing or given the reasons for the allegations made against her. The summary dismissal that followed was contrary to section 44 of the Act and not justified. There was no notice before the dismissal and the Claimant is entitled to the claims as under section 49 of the Act. House allowance was not paid and the Respondent does not give the work records to prove that such allowances were paid or that the Claimant went on leave contrary to section 35, 28 and 74 of the Act.

10. The Respondent also submitted that while the Claimant was their employee, they lost stocks worth kshs.8, 067. 00 and did not give an explanation. She is not entitled to leave as she had only worked for 4 months and left employment without notice or paying in lieu of notice. House allowance was not due or any compensation.

Determination

11. All employees should be issued with written contracts of employment. Such is the law as set out under section 10 of the Employment Act thus;

10. (1) A written contract of service specified in section 9 shall state particulars of employment which may, subject to subsection (3) be given in instalments and shall be given not later than two months after the beginning of the employment—

12. Where it is not possible to issue a written contract immediately upon employment, such must be issued within the next two (2) months of employment. Such a provision is mandatory. Such a provisions is meant to protect both parties to an employment contract – the employer and employee. The contract sets out the terms and conditions of employment agreed upon by the parties. This is helpful in terms of resolving disputes when they arise such as the current case.

13. The Claimant was employed in December 2011 and in March 2012 she left her employment. In the absence of a written contract, the duty to write such a contract being on the employer, the Respondent herein, the word of the employee, the Claimant is take seriously. The Respondent failed to undertake their legal duty to issue an employment contract and as a result there is no reference employment contract or letter of appointment for the Court to rely on save for the word of the Claimant. Where the Respondent issued pay slips to the Claimant or she singed for her monthly salaries, such records under section 73 and 74 of the Act are supposed to be submitted by the employer and the Respondent in this case did not provide these records to the court. The defence is therefore left bare.

14. For the 4 months that the Claimant was in the employment of the respondent, she acquired rights with her employment. Before her termination, the Claimant was entitled to a notice or pay in lieu of such notice as under section 35 of the Act. Where the Respondent allege that the Claimant abandoned her employment for whatever reason, there is no record as to what action the Respondent took against such an employee who was not attending to their duties. The allegations that the Claimant had missing stocks amounting to kshs.8, 067. 00, such a very serious allegations warranting serious sanction against the Claimant. It does not suffice to state that there were missing stocks and that the Claimant refused to give an explanation and when she was asked, she walked away. If indeed there was such missing stock, the Respondent does not state how this was noted and the modalities put in place to lay blame upon the Claimant and if there was due process in ensuring that the Claimant accounted for such missing stocks. Section 43 of the Act now requires employers;

…The employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.

15. Such prove must be valid for the Court to make a finding that the termination of an employee was lawful and justified in the circumstances of the case. See Frederick Kariuki Kamau versus Bank of India, Cause No.2424 of 2012.

16. Another benefit that the Claimant had by virtue of her employment was annual leave and where there was no written contract stating how her housing was to be enjoyed as a right, such became due with her contract. Section 74(1) (i) provides thus;

i. where the employer provides housing, particulars of the accommodation provided and, where the wage rates are deconsolidated particulars of the house allowance paid to the employee;

17. Where such housing benefit was not clearly set out in any document, this became due. Section 28 also provided for leave. Such are the benefits that can be drawn under the nature of employment the Respondent subjected the Claimant to. There is no alternative evidence to controvert what the Claimant stated the Respondent having failed to meet their legal duty is issuing a written contract.

18. To thus terminate the Claimant without notice, due process was not followed. Even where the Claimant may have absconded duty, the duty was on the Respondent as the employer to issue the requisite notices and require the Claimant to answer to such secondment of respond to such misconduct. I find not record of what the Respondent did on 28th March 2012 or on any other date after the events stated for this date. To allow matters to remain in such abeyance, the Respondent is held responsible as this amounts to an unfair labour practice. The Respondent should have applied the allowed termination procedures under section 41 of the Act and where the Claimant failed to attend upon notification, this would have been a good record and evidence of the efforts taken by the Respondent in this regard. For the inaction of the respondent, the resultant loss of employment by the Claimant amount to unfairness.

Remedies

19. Since the Claimant was not accorded due process and ended up losing her employment, section 45 of the Act apply and compensation is due. The Claimant had worked for only 4 months. The compensation due in this regard is discretionary and noting the circumstances of the case, such will not be awarded, save that notice pay is due at kshs.18, 000. 00.

20. Salary for March 2012 where not paid is not due. The Respondent witness stated that they did not pay the Claimant her last salary as there was missing stock and she did not give notice before leaving her employment. There is no evidence of the missing stock and as noted above where the Claimant abandoned her work, the Respondent did nothing to protect its rights and where this was a termination, due process was not followed. Such pay is thus due. The Claimant is awarded kshs.18, 000. 00.

21. Leave due under section 28 is computed within the context of an employee having worked for a period of 12 months. Any other leave due is ex gratia. Such leave shall be awarded at kshs.4, 200. 00.

Where there is no letter of appointment or an employment contract stating how housing was to be addressed, this become due. The Claimant is awarded kshs.12, 000. 00.

Judgement is entered for the Claimant in the following terms;

Notice pay at kshs.18, 000. 00;

Salary for March 2012 at Kshs.18, 000. 00;

Leave pay at kshs.4, 200. 00; and

House allowance at Kshs.12, 000. 00.

Each party shall bear their own costs.

Delivered in open court at Nairobi and dated this 29th day of October 2015.

M. Mbaru

JUDGE

In the presence of:

Lilian Njenga: Court Assistant………………….

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