[2015] KEELRC 239 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.1085 OF 2013

VALENTINE NDAGU KHATIAKALA …………………………….………… CLAIMANT

VERSUS

MAHITAJI ENTERPRISES LIMITED ………………………….………. RESPONDENT

RULING

1. Issues in dispute are;

Unlawful and illegal summary dismissal of the claimant

Refusal to pay dues and benefits upon dismissal

Unlawful, discriminatory and malicious dismissal without any valid and justifiable reason

2. On 15th July 2013 the Claimant filed his claim. His case is that in August 2009 he was employed by the Respondent and was dismissed on 2nd January 2013 without any reasonable cause. He was not issued with any warning, notice or the reasons for the dismissal. At the time of such dismissal he was earning Kshs.12, 300. 00 per month. The Claimant is seeking the following;

A declaration that the summary dismissal was unfair, wrongful and discriminatory;

Compensation at 12 months

One month notice pay

Certificate of service

Costs of the claim

Leave for 2 years

Severance pay for 2 years

3. The Claimant testified in support of his claim and stated that he was employed by the Respondent as a Loader and packing goods in vehicles. He worked continuously and would get an off of 2 to 3 days. He was paid a daily wage of kshs.410. 00 per day. In December 2012 when they closed for Christmas holiday, he reported back on 2nd January 2013 but was told that the Respondent had made changes and the company taken over by a new company. The Claimant was told to sing a new contract but he asked for time to read and understand it but he was told to stay outside the company. This ended up being his summary dismissal.

4. In cross-examination, the Claimant testified that he was a casual from 2009 to his last day on 2nd January 2013. He was paid a daily wage and had to sign vouchers for his pay. When he worked overtime, more pay was given. In 2013 the Respondent said there were changes and he was to work for the Respondent under a new management company which the Claimant opted not to sign.

Defence

5. In defence, the Respondent stated that on 2nd January 2013 they did not unlawfully terminate the claimant. On 31st December 2012 they offered to convert the claimant’s terms from casual to permanent under and outsourced company known as Patdic Enterprises Limited but he declined. The Claimant then absconded duty without informing the respondent. Previously the Claimant was on casual terms and was paid a daily wage with one day off work. The Claimant was not terminated as he absconded duty and his daily wage was kshs.515. 00 per day and nothing is owing. No leave pay is due as the Claimant had a day off. There was no malice or discrimination as the Claimant was offered better terms and declined.

6. In evidence, the Respondent called John Omondi the Administrative Officer as their witness. That he was employed by the Respondent in 2011 and has all the Claimant work records. That the Claimant was employed as a casual and paid each day and had a weekly off days until 31st December 2012 when he was paid his dues. The Claimant singed his casual employment contract and when in January 2013 there were changes to outsource labour, this was to affect all casual employees. All casuals were informed in December 2012 and all those with reservations were to inform the respondent. The Claimant did not report to work without giving any reasons. There was no causal of unfair dismissal as the Claimant was a casual and when he failed to report back, his contract had terminated.

Submissions

7. In submissions, the Claimant restated his case. Added nothing more in terms of the law and an assessment thereof.

8. The Respondent submitted that the Claimant was on a causal contract and was paid kshs.515. 00 per day wage. He got a day off. He was offered new terms for a permanent job but opted out b declining to sign his contract. That under section 35(1) of the Employment Act, the Claimant casual contract could be terminated. This was not a cause of summary dismissal but that of absconding duty.

Determination

9. The Claimant was clear in his evidence that he was issued with a new document, a contract with a new company and he asked for time to understand it but he was not allowed back at the respondent. To this, the Respondent stated that there was change of management with regard to causal employees, such labour was outsourced and the Claimant was issued with a contract for permanent employment. I take it that the Claimant was made aware of the changes that were taking place in 2013 on change of employment from Respondent to a new entity. The Claimant confirmed having received the new document to read and understand. He does not state what he did with this document only that he was not allowed back to work.

10. However before such outsourcing and issuance of a new contract to the claimant, the Respondent confirms that since 2009, the Claimant was a casual employee until 31st December 2012. Section 37 of the Employment Act is thus clear in such a scenario thus;

37. (1) notwithstanding any provisions of this Act, where a casual employee—

(a) works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or

(b) performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more,

the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35 (1) (c) shall apply to that contract of service.

11. Where an employee such as the Claimant remains in continuous employment for more than 3 consecutive months for work that is not completed within a period, his casual contract notwithstanding, there is a statutory conversion of such a contract into permanent terms. The employment status of the Claimant changed after being a causal employee for the periods envisaged under section 37. Before his termination so as to fall under a new employee as outsourced by the respondent, compliance with the law was necessary. The Claimant should have been given prior written notice of the changes in employers and where he found it necessary to move to the new employer with better terms of engagement, this was to be left upon him to make an informed choice based on the notice given by the respondent. It is not sufficient to state that the Claimant was getting a better contract. To the contrary, the Respondent as the employer had to ensure their compliance with the law before handing over the claioamtn to a new employer.

12. Where the Claimant was not informed of the changes taking place in his employment in writing, this in effect frustrated his employment. Where there is no written notice on the changes from the Respondent to a new employer, the requisite procedure was not followed. The Claimant does not also help his own cause when he was offered new employment and declined. He could have mitigated his own cause by taking such new employment and still sustained his claim with the Respondent for his terminal dues.

Remedies

13. Notice pay is due herein as such termination notice was not issued to the Claimant before outsourcing of his employment and positon to a new employer. The Claimant is entitled to kshs.12, 300. 00.

14. The Respondent failure to take the Claimant through the process of termination over a contract converted into full time employment under section 37 acted unfairly. The Claimant is entitled to compensation. This is awarded at one (1) months’ salary at kshs.12, 300. 00.

15. Leave is claimed. The Claimant testified that he got 2 to 3 days off. Cumulatively, the computation of such days per month total to minimum 8 days. The Claimant failed to clarify how and when he took such 2 to 3 days. No rest days are claimed and in due consideration that these were off days for his rest, to separately claim for leave without a proper outline as to how these leave was earned is a claim that is vague and will not be granted.

16. Severance pay is due under section 40 of the Employment Act in cases of redundancy. The issues in dispute refer to summary dismissal and not a redundancy. Where such a claim may have related to service pay, the Claimant fails to outline the all-important prayer as under section 12(3) (viii) of the Employment and Labour Relations Court Act. There is no severance pay that is due.

17. A Certificate of Service is a right under section 51 of the Employment Act. This certificate should issue to the Claimant noting that his employment was converted under section 37 of the Act to full time. The Respondent is to issue the same without any further day and immediately upon the reading of the judgement herein.

Judgement is therefore entered in the following terms;

The Claimant awarded compensation at kshs.12, 300. 00

Notice pay at kshs.12, 300. 00

Certificate of Service be issued immediately.

Costs of the suit.

Delivered in open court at Nairobi and dated this 29th day of October 2015.

M. Mbaru

JUDGE

In the presence of:

Lilian Njenga: Court Assistant………………….

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