[2018] KEELRC 22 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAKURU

CAUSE NO.257 OF 2015

WYCIFFE SAGARA KADAGI....................CLAIMANT

VERSUS

SHIRDI TRADING STORES LTD...........RESPONDENT

JUDGEMENT

1. The claimant was employed by the respondent company on 3rd January, 2011 as a turn boy a position he held until 31st December, 2013. The wage paid was Kshs.250. 00 per day from January, 2011 to April, 2011 whereas the minimum wagewas Kshs.309. 50 per day and there was an underpayment. From 1stMay, 2011 to 1stMay, 2012 the minimum wage was Kshs.348. 20 per day and the claimant continued to receive Kshs.250. 00 per day.

2. The claim is that the underpayments continued and contrary to the applicable wage orders and all amounting to kshs.65, 670. 00. These underpayments were contrary to the law.

3. On 31st December, 2013 the claimant reported to work and was dismissed without any valid reason and contrary to the provisions of section 41 of the Employment Act. The matter was reported to the County Labour Officer and no action was taken.

4. The claimant is seeking the following;

a) Notice pay at Kshs.10,777. 95;

b) Underpayments kshs.65,670. 00;

c) Compensation at Kshs.129, 335. 00.

5. The claimant testified in support of his claims. upon employment the claimant was a turn boy loading goods and the records attached by the respondent are not correct as they do not state what position the claimant held. The dismissal from employment was contrary to due process and no reason was given.

6. The claimant also testified in cross-examination that upon reporting to work on31stDecember, 2013 he had been to Nairobi to deliver good and collect more but upon return he was paid his dues and dismissed form his employment. The allegations that he failed to report to work for two days is not true as he had been on duty as required.

7. In January, 2014 the claimant was employed by Chan Services and allocated work with the respondent and was undertaking similar duties as before.

Defence

8. In response the respondent’s case is that the claimant was not employed as a turn boy as alleged and there were no underpayments. The respondent denies violating the law with regard to the claimant leaving its employment and the monetary entitlements set out are without justification.

9. In evidence, the respondent’s witness was Patel Jay the Director of the respondent company and who testified that he employed the claimant in 2011 as a causal employee with duties to load and offload goods and he was paid per day for days worked. In 2013 the claimant left work in December, and failed to return. In January, 2014 the claimant was working for another company and was allocated work within the respondent business. During the claimant’s employment he would fail to report to work on various occasions, upon being summoned to explain he would keep his phone off.

10. The claimant was paid the due legal wage for a causal employee and for the duties he was undertaking. There is a master roll to confirm the payments made. The claimant was not at work on full time basis and whenever he did, the respondent paid the due wage for the day.

11. Mr Patel also testified that the claimant was sent for work in Nairobi but failed to report back to work. Despite being called to explain himself, he did not attend andstarted working for a neighbour of the respondent doing similar duties. The respondent was incurring losses in the business and the claimant failed to give an account. Staff would be stealing and fail to give account and file claims in court seeking damages and compensation. Several cases of robbery have been reported to the police without any action being taken. This has led the respondent business to near closure.

12. There was no underpayment as claimed; the claimant absconded duty and notice pay is not due.

13. At the close of the hearing, both parties filed written submissions.

14. Part of the records submitted by the claimant to support his case is a contract of service with Chan Services and which commenced on 2nd January, 2014.

15. The respondent has also filed work records with regard to the claimant and which sets out work attendance and payments made to him.

16. The claimant asserts that he was a turn boy and was underpaid in that role while the respondent asserted that the claimant was a causal employee and was allocated general duties and for that role he was paid over and above the minimum wage.

17. From the work records filed by the respondent and the evidence thereto from Mr Patel, the claimant had duties of loading and offloading goods and would be sent to Nairobi to undertake similar duties. The claimant was paid for his leave days, had a work benefit with remittances to the NHIF and NSSF and a net pay was made. There is also a leave salary paid to the claimant. From the records, it is apparent that the claimant was not at work during Sunday and I take this was his rest day.

18. Upon the claimant leaving the respondent’s employment, a report was lodged with the County Labour Office. The claimant is described as a General Labourer of the respondent from January, 2011 to May, 2015.

19. This being a report by the claimant and with conflicting information on the status of employment, the County Labour Officer being the first office where the claimant lodged his complaint, I take it the position he held was that of a General Employee of the respondent.

20. Where the respondent asserts that the claimant was a causal employee, and such causal employment continued for period over and above daily allocation of work and despite their being daily payments of wages, by application of section 37 of the Employment Act, 2007 the claimant was entitled to rights and benefits under the Act. To this end the respondent dully complied and ensured the claimant took a rest day, the claimant was paid for his leave days and his statutory remittances were effected.

21. As a general labourer, the claimant’s wage under the wage orders in 2011 was Kshs.298. 15 and he was paid Kshs.250. 00 per day and which is less 48. 15 the minimum wage. However of this minimum wage due, the claimant had work benefits of leave pay, off day and statutory remittances. Quantified, the respondent paid a wage over and above the statutory minimum for each day for the period served.

22. The wage due in the period of the year 2012 being Kshs.335. 40 and such quantified with the work benefits for a general labourer, the respondent paid over and above the legal minimum. This equally applied for the period of 2013 and for the time the claimant ceased employment with the respondent when the daily wage was Kshs.379. 30.

23. I find no underpayment of the claimant.

24. Section 44(4) of the Employment Act, 2007 allows an employer to dismiss an employee summarily where the employee commits acts of gross misconduct. The notice due in such a case may be less and based on the circumstances of each case.

24. In this regard the claimant testified that he had been sent to Nairobi for work and when he returned he was called to the office and dismissed. I take this evidencewith great caution as where the claimant testified that he was sent away for two days on 31stDecember, 2013 and upon return he was dismissed, such evidence is compromised by the annexure the claimant attached to his claim on the basis that on 2ndJanuary, 2014 he was already in new employment. Where the claimant left work on 31stDecember, 2013 the fact of being sent away for two days places him on 2ndJanuary, 2014. On such day he was already at work with a new employer.

25. Section 44 of the Employment Act, 2007 allows an employer to dispense with a hearing where circumstances of the same do not allow. The employer must however demonstrate the same. In this regard the respondent testified that efforts tocall the claimant to work failed to bear fruit. The claimant’s wife was called and she too could not explain where the claimant was. SeeGeorge Musamali versus G4SSecurity Services Kenya Ltd [2016] eKLR andwhere court held that once there is misconduct, the employer is not required to undertake procedures similar to a criminal trial. All what is expected is that the employee is invited to attend and given a reasonable and fair chance to explain himself. This is reiterated in the case ofJoseph Onyango Asere versus Brookside Dairy Limited [2016] eKLRthat the evidence collected on the shop floor I the best for the employer to rely upon in addressing any misconduct of an employee.

26. On this evidence, and the defence that the claimant absconded duty after 31stDecember, 2013 and that when he was sent to Nairobi he failed to render accounts and was never seen at his place of work is correct. The claimant could not report back to his work station as he had already secured new employment. The claimant has submitted such evidence on his own volition.

27. On this basis, notice pay is not due to an employee who absconds duty, commences new employment with a new employer without notice to the former employer and when called to account for work undertaken with the former employer fails to do so. To award notice pay or compensation on this evidence would be to reward gross misconduct.

Accordingly, the claims made must fail and are hereby dismissed. Each partyto bear own costs.

Delivered in open court at Nakuru this 30th day of July, 2018.

M. MBARU

JUDGE

In the presence of:

Court Assistants: Nancy & Martin

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