[2014] KEELRC 718 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT AT NAIROBI

CAUSE NUMBER 1214 OF 2011

BETWEEN

VIPIN KUMAR……………………………………CLAIMANT

VERSUS

NASA PRODUCTS LIMITED……………... RESPONDENT

Rika J

CC Leah Muthaka

Mr. Nyabena instructed by Nyabena Nyakundi & Company Advocates for the Claimant

Mr. Shilenje instructed by J.B. Shilenje & Company Advocates for the Respondent

________________________________________________________________________

ISSUE IN DISPUTE: UNFAIR AND UNLAWFUL TERMINATION

AWARD

1. This Claim was initiated by the Claimant through a Statement of Claim filed on 21st April 2011. The Respondent replied in a Statement of Reply, filed on 15th November 2011. The Claimant attended Court on 24th October 2012 to testify, but was observed to be too ill to give evidence and was stood down to give him room for recuperation. The Court was advised by the Advocates that the Claimant suffered a stroke some days before the hearing date, which left him considerably incoherent. He was not able to give evidence in the days that followed, and on 20th March 2013, the Advocates agreed to have the dispute heard and disposed of by way of the pleadings, affidavits and submissions on the record. It was confirmed the Parties filed their submissions at the last mention on 10th July 2013, and the Court advised Award would be read on notice.

2. The Claimant’s position is that he was employed by the Respondent as a Manager on 2nd May 2008. He was confirmed on 1st July 2008, and availed a letter of employment of the same date. He earned a basic salary of Kshs. 41,000. His contract was terminated by the Respondent without warning, notice or reason, on the 30th September 2010. The Respondent made unauthorized deduction on the Claimant’s pay for the month of September 2010 at Kshs. 11,000. He was not called to show cause why his contract should not be terminated, and was not heard in accordance with Section 41 of the Employment Act 2007. The Claimant made a demand for redress through his Advocates on 9th April 2011. The Respondent replied through its Advocates on 9th May 2011, denying that the Claimant was ever employed by the Respondent. The Claimant seeks-:

One month salary in lieu of notice at Kshs. 41,000;

Refund of the unlawful salary deductions of Kshs. 11,000;

House rent allowance at Kshs. 6,150 per month for 28 months total Kshs. 172,200;

Service gratuity for 2 years at the rate of 15 days’ salary for each completed year of service amounting to Kshs. 41,000;

Annual leave pay of Kshs. 92,250;

12 months’ salary for unfair termination at Kshs. 492,000

Total ……… Kshs. 849,000

The Claimant asks the Court to order that he is reinstated without loss of benefits in alternative to these monetary reliefs. He seeks an order for release of his certificate of service, costs and interest on the monetary items at Court rate.

3. The Respondent conceded it employed the Claimant on 1st July 2008. His salary was Kshs. 41,000- all inclusive. He was not dismissed by the Respondent; he worked up to 11th October 2010, and was paid his dues up to this date. He then absconded after 11th October 2010, and never went back to work. The law of termination did not apply, as the Claimant left out of his own volition. The Respondent relied on an affidavit filed by its Executive Secretary Pamela Nasimiyu Nabuiki, sworn on 25th October 2011. The Claimant was granted annual leave, and did not have outstanding annual leave days at the time of leaving.

4. Pamela explained that Kshs. 41,000 paid to the Claimant every month, included all other allowances including house rent allowance. All management staff received an all-inclusive salary. He was warned in August 2008 about excessive absence from duty. He was verbally warned by the Director that his salary would be reduced if he did not improve performance. He did not improve and his salary for September 2010 and October 2010 was reduced to Kshs. 30,000. He worked and was paid up to 11th October 2010 when he absconded. The Respondent attached its muster roll showing the Claimant was in active employment up till 11th October 2010. His name would not have continued to appear in the muster roll if he was dismissed on 30th September 2010. The Respondent seeks dismissal of the Claim.

The Court Finds and Awards-:

5. There is considerable doubt in the mind of the Court on the Claimant’s assertion that he was unfairly dismissed on 30th September 2010. It is unfortunate that the Claimant was not able to testify or call other witnesses who could verify his Claim on termination. This is so because there were employment records introduced through the affidavit of Pamela, which suggest the Claimant was in Respondent’s muster roll for some days up to October 2010.

6. His claim for compensation for unfair termination and for notice pay is not well grounded. Similarly his claim for annual leave pay is not persuasive particularly given the number of days he was noted to be absent without leave over the years. The prayer for gratuity pay was not supported by the contract of employment or any legal provision. The pay slips show the Claimant was subscribed to the N.S.S.F and not eligible under Section 35 [6] of the Employment Act 2007, to earn any form of service pay. The prayer for reinstatement is not suitable, practicable or reasonable. There was no justification however, in reducing the Claimant’s salary to Kshs. 30,000. The prayer for refund of Kshs. 11,000 is allowed. The monthly pay of Kshs. 41,000 was stated to be basic salary on the pay slips. Basic salary as this Court has explained in the past, is the salary paid to an employee without any allowance. The slot in the pay slip for house rent allowance was left blank. There was no indication that the salary was consolidated, and the letter of appointment said nothing of the house rent allowance. The Court finds the prayer for house rent allowance justified, and is granted at 15 % of the basic pay of 41,000 x 28 months = Kshs. 172,200. The certificate of service should always be availed to the employee on termination under Section 51 of the Employment Act 2007, regardless of the manner of termination. In sum-:

[a] The Court finds the Claimant left employment of his own volition;

[b] All his prayers except for the prayers on house rent allowance and refund of salary irregularly deducted, are disallowed;

[c] The Respondent shall pay to the Claimant arrears of house rent allowance and refund of salary at Kshs. 183,200 within 30 days of the delivery of this Award;

[d] Certificate of service to issue

Dated and delivered at Nairobi this 29th day of January 2014

James Rika

Judge