[2017] KEELRC 1920 (KLR)
The court found that the respondent failed to prove that the termination of the claimant's employment was based on a valid and fair reason or that a fair procedure was followed, as required by the Employment Act. The payment of severance pay indicated redundancy, but the respondent did not comply with the mandatory...
Source-derived case information.
- Citation
- [2017] KEELRC 1920 (KLR)
- Parties
- Claimant: Swaleh Tsimba Mbandi; Respondent: MSB Educational Institute
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 568 of 2015
- Procedural Posture
- Employment Cause / Ex Parte Judgment After Non Appearance by Respondent
- Outcome
- Judgment for the claimant.
- Legal Topics
- Unfair Termination, Redundancy Procedure, Compensation for Dismissal, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Swaleh Tsimba Mbandi
Claimant
MSB Educational Institute
Respondent
Procedural Posture
Employment Cause / Ex Parte Judgment After Non Appearance by Respondent
Legal Issues
- 1 Whether the termination of the claimant's contract was unfair.
- 2 Whether the claimant is entitled to the reliefs sought.
Ratio Decidendi
The court found that the respondent failed to prove that the termination of the claimant's employment was based on a valid and fair reason or that a fair procedure was followed, as required by the Employment Act. The payment of severance pay indicated redundancy, but the respondent did not comply with the mandatory statutory procedures for redundancy, including notice to the claimant and the Labour officer and fair selection. The respondent also failed to issue a Certificate of Service. As a result, the termination was declared unfair, and the claimant was entitled to compensation and a Certificate of Service.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant KES 120,000 as compensation for unfair termination.
- The respondent shall issue the claimant with a Certificate of Service forthwith.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 568 OF 2015
SWALEH TSIMBA MBANDI….…………………….......CLAIMANT
VS
MSB EDUCATIONAL INSTITUTE………….…………RESPONDENT
JUDGMENT
Introduction
1. This is a claim for compensation for unfair termination of the claimant’s contract of employment by the respondent on 20. 7.2013. It is the claimant’s case that the termination was done for valid and fair reason and without according him a fair hearing or serving him with a prior notice.
2. The respondent never filed any defence despite being served with summons and the claimant’s pleadings. Consequently the suit was heard exparte on 22. 6.2016 when the claimant testified as Cw1 and thereafter filed written submissions.
Analysis and Determination
3. After careful consideration of the evidence and the submissions presented before the court there is no dispute that the claimant was employed by the respondent as a Driver from May 2009 to 20. 7.2013 when his service was terminated by the respondent. The issues for determination are:-
(a) Whether the termination of the claimants contract was unfair
(b) Whether the claimant is entitled to the reliefs sought.
Unfair termination
4. Under section 45 (2) of the Employment Act, termination of employment contract by the employer is unfair if he fails to prove that it was grounded on a valid and fair reason and that it was done after following a fair procedure. A valid and fair reason is one which is true and which relates to the employee’s conduct and the operational requirement by the employer. On the other hand, a fair procedure involves according the employee a fair hearing before the termination, paying him any accrued dues and giving him a Certificate of Service.
5. In this case the respondent never defended the suit to dispute the claimants claim. However considering the fact that she paid the claimant severance pay, I have no doubt that the termination was through redundancy without following the mandatory statutory procedure under section 40 of the Act. Consequently, I find that the claimant has discharged his burden under Section 47(5) of the Employment Act by proving that he was unfairly dismissed.
6. The reason for the foregoing view is that although the employer paid him one month salary in lieu of notice, she never cited any provision of the contract of employment that entitled her to terminate the contract as such. Under section 40 of the Employment Act, in addition to payment of salary in lieu of notice, she was required in mandatory to serve the claimant and the Labour officer with at least one month notice and do a fair selection of the employees to be laid off before terminating the claimant on ground of redundancy. In addition, the failure to issue the claimant with a Certificate of Service was unfair and in breach of Section 45(5) (c) and Section 51 of the Employment Act. The answer to the first issue for determination is in the affirmative.
Reliefs
7. Under Section 49(1) (4) of the Employment Act the claimant is awarded 120,000 being eight (8) months salary as compensation for unfair termination. In making the said award I have considered the fact that the claimant did not contribute to the termination through misconduct and also the fact that the employer paid him severance pay.
8. In addition to the said compensation above, I order the respondent to forthwith issue the claimant with a Certificate of Service as required under Section 51 of the Employment Act.
Disposition
9. For the reasons stated above I enter judgment for the claimant for the sum of kshs.120,000 plus costs and interest. The claimant will also have a Certificate of Service.
Signed, dated and delivered at Mombasa this 20th day of January, 2017.
O.N. MAKAU
JUDGE