[2018] KEELRC 1388 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 338 OF 2014

TERESIA WANJIRU.............................................................CLAIMANT

v

METAL CROWNS LIMITED........................................RESPONDENT

JUDGMENT

1. On 24 August 2013, Metal Crowns Ltd (Respondent) wrote to Teresia Wanjiru (Claimant) to inform her that her employment had been terminated, and the reasons given were warming food in the Director’s microwave and not reporting to the management about chicken bones which had been dumped into a trash bin in the kitchen (it is germane to note that the Respondent is owned by members of the Sikh faith and meat products is strictly prohibited).

2. The termination of employment prompted the Claimant to move Court on 6 March 2014 alleging unlawful/wrongful termination of employment.

3. The Claimant sought compensation, pay in lieu of notice, compensation (damages) for discrimination and torture and lost income.

4. In its Response, the Respondent denied the termination of employment was unfair or that it discriminated against/tortured the Claimant. It was contended that the termination of employment was fair and lawful.

5. The parties filed documents and the Cause was heard on 19 June 2018 when the Claimant and the Respondent’s Human Resources Manager testified.

6. The Claimant filed her submissions on 22 June 2018. The Respondent filed its submissions on…

7. The Court has given due consideration to the pleadings, evidence and submissions and identified the Issues for determination as, whether the termination of the Claimant’s employment was unfair, whether the Claimant was discriminated against and appropriate remedies.

Unfair termination

Procedural fairness

8. The Claimant was employed by the Respondent as a cleaner/tea girl on 7 June 2010. She testified that she was not served with a show cause before the termination, was not afforded an opportunity to make representations and that there was no disciplinary hearing.

9. When shown a copy of the show cause on her file, the Claimant disowned having received it and insisted that the practice was for employees to sign in acknowledgment of such letters.

10. The Respondent’s Human Resource Manager admitted that she was employed long after the Claimant had been dismissed and that her testimony was based on the records.

11. The witness stated that though there was a show cause letter on the file, there was no evidence in form of acknowledgment that the Claimant received it.

12. The Claimant denied receiving the show cause notice.

13. The Respondent’s witness did not challenge the Claimant’s testimony as to the process of acknowledging such notices or disclose who served or could have served her with the show cause notice.

14. In the circumstances and in consideration of sections 35(1)(c) and 41 of the Employment Act, 2007, the Court finds that the show cause notice was not served and therefore the termination of the Claimant’s employment was procedurally unfair.

Substantive fairness

15. With the finding on procedural fairness, it is not necessary for the Court to consider whether the Respondent discharged the burden imposed on it by sections 43, 45 and 47(5) of the Employment Act, 2007.

16. However, were it necessary, the Court would have concluded that there were no valid and fair reasons to terminate the employment of the Claimant because her testimony that a colleague, Violet Adhiambo was the culprit responsible for the chicken bones and use of microwave and that she (Violet) was dismissed a month before her own dismissal were not challenged or controverted.

Discrimination/torture

17. Although pleading discrimination and/or torture, the Claimant did not lay any evidential foundation on the allegations of discrimination and torture and the Court finds that this head of claim was not proved.

Appropriate remedies

Pay in lieu of notice

18. The Claimant admitted that she was paid Kshs 40,000/- after termination. The termination letter had indicated that the Claimant would be paid wages up to 24 August 2013, outstanding leave, equivalent of 40 days’ pay in lieu of notice and gratuity.

19. The Claimant still sought the equivalent of 12 months wages as pay in lieu of notice.

20. The Claimant was paid by the month, and in terms of section 35(1)(c) of the Employment Act, 2007 and the payment of 40 days’ pay in lieu of notice, the Court holds that nothing turns on this relief.

Compensation

21. The Claimant served the Respondent for about 3 years and in consideration of the length of service, the Court is of the view that the equivalent of 3 months gross wages would be appropriate (gross wage according July 2013 pay slip produced was Kshs 30,941/-).

Damages for discrimination

22. This head of claim was not proved, and therefore the relief is not available to the Claimant.

Lost income

23. The Claimant did not provide any contractual, evidential or legal foundation for this relief and it is dismissed.

Severance pay

24. The Claimant introduced this head of claim in the submissions. It was not pleaded and therefore the Court has no basis to entertain it.

Conclusion and Orders

25. The Court finds and holds that the termination of the Claimant’s employment was unfair and awards her

(a) Compensation Kshs 92,823/-

26. Claimant to have costs.

Delivered, dated and signed in Nairobi on this 27th day of July 2018.

RADIDO STEPHEN

JUDGE

Appearances

For Claimant Ms. Omondi instructed by Omwakwe & Associates

For Respondent Ms. Mago instructed by Kabue Thumi & Co. Advocates

Court Assistant Lindsey