[2018] KEELRC 252 (KLR)
The court found that the grievant, Hezekiah Mukabane, was an employee of the Respondent and that there was no evidence from the Respondent to counter the Claimant's case of wrongful dismissal. The court accepted the Claimant's evidence that the dismissal was not for abscondment but was instead a result of the...
Source-derived case information.
- Citation
- [2018] KEELRC 252 (KLR)
- Parties
- Applicant: Tailors & Textiles Workers Union; Respondent: Spin Knit Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1297 of 2013
- Procedural Posture
- Employment Cause / Judgment After Formal Proof
- Outcome
- Judgment for the Claimant; wrongful dismissal established.
- Judges
- HS Wasilwa
- Legal Topics
- Wrongful Termination, Severance Pay, Notice in Lieu, House Allowance, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tailors & Textiles Workers Union
Applicant
Spin Knit Limited
Respondent
Procedural Posture
Employment Cause / Judgment After Formal Proof
Legal Issues
- 1 Whether the dismissal of Hezekiah Mukabane by the Respondent was wrongful.
- 2 Whether the grievant is entitled to terminal dues and compensation as claimed.
Ratio Decidendi
The court found that the grievant, Hezekiah Mukabane, was an employee of the Respondent and that there was no evidence from the Respondent to counter the Claimant's case of wrongful dismissal. The court accepted the Claimant's evidence that the dismissal was not for abscondment but was instead a result of the grievant suing for injuries sustained at work. The court held that the grievant was entitled to terminal dues, including wages for days worked, house allowance, notice pay, severance pay, and compensation for wrongful termination, as the Respondent failed to follow due process and did not provide valid reasons for the dismissal. The court also ordered the issuance of a certificate of...
Court Disposition
Judgment for the Claimant; wrongful dismissal established.
Orders
- Respondent to pay the grievant a total of Kshs. 45,731 as terminal dues and compensation.
- Respondent to issue a certificate of service to the grievant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1297 OF 2013
(Before Hon. Justice Hellen S. Wasilwa on 4th December, 2018)
TAILORS & TEXTILES WORKERS UNION................CLAIMANT
VERSUS
SPIN KNIT LIMITED...................................................RESPONDENT
JUDGEMENT
1. The Claimant filed their Memorandum of Claim on 14. 8.2013 alleging overworking of 52 hours instead of 45 hours per week. They also alleged wrongful dismissal of Lucy Mwangi, Hezekiah Mukabane and Livingstone Anyonje.
2. In the Claimant’s final submissions filed in Court on 19. 10. 2015 however the Claimants indicated that they had withdrawn the prayer for overworking of the grievants and also withdrawn the claim on before of Lenny Mwangi who had been paid his final dues and also the claim for Livingstone Anyonje whom they could not trace.
3. The claim therefore remaining is for wrongful dismissal of Hezekiah Mukabane.
4. The Claimant’s case is that the grievant Hezekiah Mukabane was employed by the Respondent from 12th May 1987 as a General Worker at a salary of 2,291/=. The grievant was dismissed on 13. 6.1994 after he was injured as an attendant. He referred Court to Appendix 9, which is the letter dated 23. 4.2010 referring this case to Court.
5. He contends that he was dismissed because he sued the Respondents for injuries sustained. He has also stated that at the time of dismissal he could not have moved to Court directly without going through the conciliation process as provided for under the Trade Dispute Act. He had to have the matter referred to the Ministry of Labour who finally released their report on 23. 4.2010 (Appendix 9).
6. The Claimants contend that they did not agree with the findings of the Labour officer as the Respondents were alleging that the grievant had absconded duty, which was not true. The grievant aver that the day he is alleged to have absconded is the same day he was given a gate pass to bring medical certificate, which they knew were already in their possession as the Claimants’ Appendix APP 7.
7. The grievant testified that he was not issued with any appointment letter and that he was verbally dismissed and not paid his terminal dues. He therefore seeks for judgement to be entered in his favour for Kshs.50,501 which is as per the Memorandum of Claim.
8. On 18/9/2017, J Wa Makau ordered this claim to proceed for formal proof. This case therefore proceeded for formal proof on 24/10/2018.
9. From the grievant’s case, there is proof he was an employee of the Respondent. There is no indication as to how this relationship ended.
10. The Respondent never gave any evidence to counter the Claimant’s evidence. The Claimant’s case therefore remains unchallenged. I therefore find for the Claimant and enter judgement for the grievant Hezekiah Mukabane as follows:-
1. Wages for days worked at the rate of 1791. 70 per month = 1,722/=
2. House allowance as prayed = 480/=.
3. 3 months’ notice in lieu of notice as per the Collective Bargaining Agreement = 3 x 2291= 6,873/=.
4. Severance pay at 15 days for each completed year of service = 12 x 2,291 x 8 = 9,164/=
5. 12 months compensation for wrongful termination = 12 x 2291 = 27,492/=.
TOTAL = 45,731/=
6. The grievant will also be issued with a certificate of service.
7. The Respondent will also pay costs of this suit plus interest at Court rates with effect from the date of this judgement.
Dated and delivered in open Court this 4th day of December, 2018.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Omondi for Claimant/Applicant – Present
No appearance for Respondent