[2018] KEELRC 2314 (KLR)
The court found that the claimant was not given notice of termination as required by law, and the respondents failed to justify the termination or participate in the proceedings. The evidence established that the claimant was dismissed after a workplace injury and was not issued a written contract. The court held...
Source-derived case information.
- Citation
- [2018] KEELRC 2314 (KLR)
- Parties
- Claimant: Vincent Ikusya Kimetu; Respondent: John Kanyuthia Mutunga t/a Skyline School; Respondent: Sheila Karea Mutegi t/a Skyline School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1707 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; termination declared unfair; monetary and non-monetary reliefs granted.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Notice Pay, Compensation for Dismissal, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Ikusya Kimetu
Claimant
John Kanyuthia Mutunga t/a Skyline School
Respondent
Sheila Karea Mutegi t/a Skyline School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment was unfair and unlawful.
- 2 Whether the claimant is entitled to terminal dues including pay in lieu of notice, compensation, leave, house allowance, and overtime.
- 3 Whether the claimant is entitled to a certificate of service.
Ratio Decidendi
The court found that the claimant was not given notice of termination as required by law, and the respondents failed to justify the termination or participate in the proceedings. The evidence established that the claimant was dismissed after a workplace injury and was not issued a written contract. The court held that the termination was unfair under section 47(5) of the Employment Act, 2007. The claimant was entitled to pay in lieu of notice and compensation equivalent to four months' gross wages, considering his short period of service and the circumstances of his dismissal. Claims for annual leave, house allowance, and overtime were dismissed due to lack of evidential basis or...
Court Disposition
Claim allowed in part; termination declared unfair; monetary and non-monetary reliefs granted.
Orders
- Respondents to pay the claimant Kshs 15,000 as pay in lieu of notice.
- Respondents to pay the claimant Kshs 60,000 as compensation for unfair termination.
Full Case Text
Judgment text and source record
65 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1707 OF 2015
VINCENT IKUSYA KIMETU..........................................CLAIMANT
VERSUS
JOHN KANYUTHIA MUTUNGA
t/a SKYLINE SCHOOL....................................1st RESPONDENT
SHEILA KAREA MUTEGI
t/a SKYLINE SCHOOL...................................2nd RESPONDENT
JUDGMENT
1. On 24 September 2015, Vincent Ikusya Kimetu (Claimant) instituted proceedings against John Kanyuthia Mutunga and Sheila Karea Mutegi t/a Skyline School (Respondents) alleging Unfair and unlawful termination of employment and failure to pay terminal dues.
2. The firm of Were & Oonge, Advocates filed a Notice of Appointment of Advocates on 18 January 2016.
3. On 20 January 2016, the Court granted the Respondent 14 days to file a Response. The order was not complied with.
4. On 19 July 2017, the Claimant served a hearing notice upon the Respondent’s advocate.
5. When the Cause up for hearing on 15 February 2018, the Court declined a request for adjournment by the Respondent because they had not filed a Response more than 2 years after the Court granted leave.
6. The Cause therefore proceeded as an undefended Cause (formal proof) and the Claimant filed written submissions on 28 February 2018.
7. The Claimant testified that he was employed as a gardener by the Respondents in July 2013 and served until July 2014. He was not issued with a written contract.
8. On the circumstances of separation, the Claimant testified that he got injured in the course of work and was admitted in hospital for about 3 weeks.
9. However, after he resumed duty, he requested for money to return to the hospital for a review but the Respondents declined and the 1st Respondent sent him to the 2nd Respondent.
10. According to the Claimant, the Respondents tossed him from one to the other until he was ultimately informed by the 1st Respondent around 30 May 2014 that his services were no longer required, as he was a liability to the school. He cleared and left.
11. On why the termination was unfair, the Claimant stated that he was not given notice of termination.
12. The Claimant admitted that he was provided with housing but asserted that he was not granted annual leave, but did not work during school holidays.
13. He further stated that he worked even on Sundays without overtime pay.
14. The Claimant produced exhibits including pay slips.
Whether termination was unfair
15. Pursuant to section 35(1)(c) of the Employment Act, 2007, the Claimant should have been given a month’s notice of termination.
16. Because none was given, the Court finds that the Claimant has demonstrated that there was unfair termination of employment as contemplated by section 47(5) of the Act.
Annual leave
17. Considering the school calendar and the admission by the Claimant that he took offs during school holidays, the Court finds this head of claim not proved.
Wages for June 2014
18. The evidence on record is that separation was around 30 May 2014. Wages for June 2014 were therefore not due.
House allowance
19. The Claimant admitted that he was provided with housing. Consequently he was not entitled to house allowance.
Overtime
20. The Claimant did not lay evidential basis as to the contractually agreed or prescribed minimum working hours within the sector the Respondents operated.
21. The head of claim was not proved.
Appropriate remedies
Wages for June 2014
22. The contract having been terminated in May 2014, this relief is untenable.
Salary in lieu of Notice
23. The Claimant is entitled to salary in lieu of notice as he was not given notice.
Leave
24. No basis for the relief was established and it is declined.
House allowance
25. The Claimant was housed. The relief is not available.
Overtime
26. The head of claim was not proved and the relief is declined.
Compensation
27. The Claimant served for about a year. He was also dismissed after an injury in the work place which has diminished his prospects.
28. In view of these factors, the Court is of the view that the equivalent of 4 months’ gross wages would be appropriate and fair.
Certificate of Service
29. A Certificate of Service is a statutory right. The Respondents should issue one to the Claimant within 14 days.
Conclusion and Orders
30. The Court finds and holds that the termination of the Claimant’s contract was unfair and awards him and orders the Respondents to pay him
(a) Pay in lieu of notice Kshs 15,000/-
(b) Compensation Kshs 60,000/-
TOTAL Kshs 75,000/-
31. Claimant to have costs.
Delivered, dated and signed in Nairobi on this 9th day of March 2018.
Radido Stephen
Judge
Appearances
For Claimant Mr. Kimeru instructed by Job Kimeru Advocates Co.
For Respondent Were & Oonge Advocates
Court Assistant Lindsey