[2016] KEELRC 1283 (KLR)
The court found that the claimant's dismissal was unfair as the respondent failed to appear, file a response, or discharge its statutory burden to justify the dismissal as required by sections 43 and 45 of the Employment Act, 2007. The claimant's evidence regarding underpayment, lack of overtime, and other statutory...
Source-derived case information.
- Citation
- [2016] KEELRC 1283 (KLR)
- Parties
- Claimant: Titus Chepkurui; Respondent: Corner Security Services Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 594 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment for the claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Dismissal, Minimum Wage, Overtime Pay, Statutory Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Chepkurui
Claimant
Corner Security Services Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's dismissal was unfair under the Employment Act, 2007.
- 2 Whether the claimant was entitled to underpayments, overtime, leave, public holiday pay, gratuity, and compensation.
- 3 Whether the respondent discharged its statutory burden to justify the dismissal.
Ratio Decidendi
The court found that the claimant's dismissal was unfair as the respondent failed to appear, file a response, or discharge its statutory burden to justify the dismissal as required by sections 43 and 45 of the Employment Act, 2007. The claimant's evidence regarding underpayment, lack of overtime, and other statutory entitlements was unchallenged. The court held that the claimant was entitled to all remedies sought, including pay in lieu of notice, underpayments, overtime, off duties, public holidays, leave, gratuity, and compensation, as the respondent failed to contest any aspect of the claim.
Court Disposition
Claim allowed. Judgment for the claimant.
Orders
- Respondent to pay claimant Kshs 6,999 as one month pay in lieu of notice.
- Respondent to pay claimant Kshs 171,253.20 for underpayments.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 594 OF 2014
TITUS CHEPKURUI .......................................CLAIMANT
V
CORNER SECURITY SERVICES LTD.... RESPONDENT
JUDGMENT
This is an undefended Cause. According to an affidavit of service sworn by one Ferdinant Okira on 29 January 2015, the Respondent’s Branch Manager Mr. Munyane was served with Notice of Summons on 3 December 2014.
A Response therefore ought to have been filed by 18 December 2014, but none is on record.
On 4 February 2015, the Court fixed the hearing for 16 December 2015, and the Claimant was directed to serve a hearing notice.
An affidavit of service sworn by Kennedy Wesonga and filed in Court 15 December 2015 attests to service of hearing notice which was duly acknowledged by stamping. Despite the service, the Respondent did not attend the hearing.
The Claimant testified and stated that he was employed by the Respondent on 23 January 2005 as a security guard and that he served until 5 January 2012.
On the conditions and terms of service, he stated that he was reporting to work at 6. 00am and would leave at 6. 00pm for day shift, and 6. 00pm to 6. 00am for night shift; that he worked during public holidays; that he was not paid overtime and that he was paid monthly wages of Kshs 4,500/- throughout the employment without any raise and that this was below the prescribed minimum wages for security guards.
The Claimant cited Legal Notices Nos 42 of 2005, 38 of 2006, 70 of 2009, 98 of 2010 and 70 of 2011 in the pleadings.
The Claimant’s testimony remains unchallenged and uncontroverted and the Court therefore finds that there are no real disputes of facts and that the dismissal was unfair.
It was incumbent upon the Respondent to prove the reasons for the dismissal (section 43 of the Employment Act, 2007) and that the reasons were valid and fair (section 45 of the Act). The Respondent did not appear in Court to discharge that burden.
Appropriate remedies
There being no disputed facts, the Court finds that the Claimant is entitled to the remedies as sought.
Conclusion and Orders
The Court finds and holds that the dismissal of the Claimant was unfair and awards him and orders the Respondent to pay him
1 month pay in lieu of Notice Kshs 6,999/-
Underpayments Kshs 171,253/20
Normal overtime Kshs 251,169/22
Off duties Kshs 170,485/63
Public holidays Kshs 51,504/42
Leave Kshs 32,970/30
Gratuity Kshs 16,600/-
Compensation Kshs 96,550/20
TOTAL Kshs 797,531/37
No order as to costs.
Delivered, dated and signed in Nakuru on this 3rd day of May 2016.
Radido Stephen
Judge
Appearances
For Claimant Ms. Kerubo instructed by Korongo & Co. Advocates
For Respondent did not participate
Court Assistant Mwangi S