[2015] KEELRC 1528 (KLR)
The court found that the claimant was unlawfully terminated by the respondent, as there was no evidence of notice or hearing provided to the claimant as required under Section 41 of the Employment Act. The respondent's claim that the claimant absconded duty was not substantiated and appeared to be an afterthought,...
Source-derived case information.
- Citation
- [2015] KEELRC 1528 (KLR)
- Parties
- Claimant: Stephen M. Onyiengo; Respondent: J.R.S Group Security Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 154 of 2013
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- claim allowed in part
- Judges
- HS Wasilwa
- Legal Topics
- Unlawful Termination, Underpayment of Wages, Service Benefits, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen M. Onyiengo
Claimant
J.R.S Group Security Ltd
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the claimant absconded duty or was unlawfully terminated.
- 2 Whether the claimant is entitled to the remedies sought.
Ratio Decidendi
The court found that the claimant was unlawfully terminated by the respondent, as there was no evidence of notice or hearing provided to the claimant as required under Section 41 of the Employment Act. The respondent's claim that the claimant absconded duty was not substantiated and appeared to be an afterthought, as it was not raised with the labour office or in response to the claimant's advocate's demand notice. The court accepted the claimant's evidence and calculations regarding underpayment, lack of leave, and non-remittance of NSSF dues. Consequently, the claimant was entitled to one month's salary in lieu of notice, service benefits for nine years, underpayment of wages, and...
Court Disposition
claim allowed in part
Orders
- Respondent to pay claimant one month's salary in lieu of notice: Kshs 10,204.37.
- Respondent to pay claimant service benefits for nine years: Kshs 39,929.85.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 154 OF 2013
(Before Hon. Justice Hellen S. Wasilwa on 12th January, 2015)
STEPHEN M. ONYIENGO ......................................................... CLAIMANT
-VERSUS-
J.R.S GROUP SECURITY LTD ............................................ RESPONDENTS
JUDGMENT
This claimant Stephen Onyiengo filed his Memo of Claim on 11. 6.2013 through the firm of M/s Chepkwony & Co. Advocates. The claimant's claim is that he was employed by the respondents as a guard from late September 2003 to 12th November 2012 when the respondents unlawfully terminated his services and refused to pay him his due. The claimant avers that, the respondents director one Rafiki had unlawfully deducted Kshs 2,500/= from his salary and when he went to demand for the same, he was sacked on the spot.
The claimant contacted his union to intervene and he also reported the matter to the labour office but the respondent refused to attend the meetings he was summoned to. He also avers that he was underpaid during the period he worked as per Appendix 1 to 9 in his further list of documents. He wants the court to direct that he be compensated accordingly. He stated that he was also not being issued with a payslip. He also prays for damages. The claimant denies absconding or escaping from work. He denies he was subjected to any warning letters and denies writing an apology dated 14. 11. 2012 which he avers that is a forgery. He also denies forging salary vouchers.
He called 1 witness, the union branch Secretary who told court that he calculated the claimant's underpayments as per the wages orders of 2006 to 2008, 2009, 2010, 2011 and 2013. He made his calculation as per Appendix 2 to 9. He also noted that the claimant never went on leave for the 9 years he worked and his NSSF dues were not being remitted. He worked out claimant's dues as per Appendix 4 which comes to Kshs 1,254,550. 99/=.
The respondents filed their defence to the Memo of Claim on 25. 6.2013 through the firm of Bruce Odeny & Co. Advocates. They contend that the claimant absconded duty on November 2012 and never showed up at his assigned work stations. All efforts to reach him were in vain. The deny unlawfully terminating the claimant's services.
Having heard evidence of both parties. The issues for determination are as follows:-
1. Whether the claimant absconded duty or was sacked.
2. Whether the claimant is entitled to remedies sought.
On 1st issue, the claimant avers that he was terminated on 12. 11. 2012. On 26. 4.2013, his advocate wrote a demand notice to the respondents. This was never responded to. Prior to this on 24. 1.2013, the labour officers also informed the respondents of a complaint raised by the claimant at the labour office, the respondents also chose to keep quite. Their later assertion that the claimant absconded duty is an after thought which they never raised to the labour office nor the counsel of the claimant.
It is therefore apparent that the claimant was unlawfully terminated by the respondents as he was not given any notice, nor any hearing as envisaged under S. 41 of Employment Act.
Is he entitled to remedies he has sought? I do find that the claimant is entitled to the following remedies?
1. 1 month salary in lieu of notice = Kshs 10,204. 37
2. Service benefits = 15 days salary for each year worked (9 years) = 15 X 9 X 8873. 3 /30 = Kshs 39,929. 85
3. Underpayment of wages since 2006 to 2011 = Kshs 82,456/=
4. 12 months salary as compensation for unfair termination = 10,204. 37 X 12 = Kshs 122,452
TOTAL due KSHS 255,038/=plus costs.
HELLEN S. WASILWA
JUDGE
12/1/2015
Appearances:-
N/A for both parties
CC. Wamache