[2015] KEELRC 341 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT

ATNAIROBI

CAUSE NO. 210 OF 2011

(Before Hon. Lady Justice Hellen S. Wasilwa on 29th October, 2015)

WYCLIFF MUSUNDI MUHALA......................................CLAIMANT

VERSUS

UKWALA SUPERMARKET LIMITED.........................RESPONDENT

JUDGMENT OF THE COURT

1. The Claimant Herein filed his Memorandum of Claim on 23/2/2013 through the firm of Namada & Company Advocates claiming unlawful and illegal termination of employment. The Claimant’s position is that he was employed by the Respondent on 2/2/2000 until 25th /8/2010.

2. However on 17th August 2010, he avers that he sought for permission from Respondent’s Branch Manager, Mr. Kamlesh at the Bus Station Branch to attend to his very sick child in Western Kenya Kakamega County. He reported back on 25/8/2010 but the said Kamlesh informed him that his services were no longer needed. This was not explained/or justified by the Respondent and was unlawful. He was also not paid his salary for August 2010.

3. He claims for payment of his August 2010 salary, 1 months salary in lieu of notice, gratuity for 8 years and compensation for leave not taken in year 2000/2001. He also seeks for damages for unlawful and unfair termination of employment.

4. The Claimant annexed the following documents as part of his evidence:- payslips for January 2009, May 2010, June 2010, July 2010 and August 2010 plus his NSSF Provisional Statement of Account as at 1st September 2010.

5. The Respondents filed their Memorandum of Reply on 21/5/2011 through the firm of Omulele & Company Advocates. They aver that the Claimant was employed by Respondent as a Casual General Worker in February 2000 and paid weekly until November 2002 when he was confirmed in employment. They also aver that at the time of his termination, he was a Till Operator with a basic salary of Kshs.9,102/= and a house allowance of Kshs.1,365. 30/=.

6. The Respondents aver that the Claimant did not seek any permission as alleged from the Branch Manager but that he absconded duty on the pretext that he was going to see his child in Western Kenya from 17/8/2010 to 27th August 2010. That when he failed to report to work on 17/8/2010 the Branch Manager, Mr. Kamlesh informed the head office (Administration Manager).

7. They have averred that the Claimant resurfaced on 25/8/2010 and claimed he had gone to see a sick child in hospital. He was asked to produced medical documents for the same but he was unable to do so to justify his absence from work. The Respondent would have exercised their option to dismiss him under Section 44(4) of employment Act 2007 but they gave Claimant a warning letter (Appendix 1).

8. However, they claim that Claimant refused to sign the warning letter and just walked away. They later got a letter from his Advocate demanding his terminal benefits (Appendix 2(a) and 2(b) which was replied to by their Advocates on 9/10/2010. They have also pleaded that the Claimant’s August 210 salary was paid to him through the bank (Appendix 4) and that he is not entitled to service pay as he is a member of NSSF. They asked court to dismiss this case accordingly.

9. I have considered the evidence of both parties and submissions filed in each case. The issues for determination are as follows:

1. Whether the Claimant was dismissed or he abscondedduty.

2. If he was dismissed, whether there were validreasons for the dismissal and if due process was followed.

3. Whether the Claimant is entitled to remedies sought.

10. On the 1st issue, the Claimant avers that he sought for permission to attend to a sick child. On coming back, he was chased away. The Respondents o their part are of the view that the Claimant never sought permission to be away when he turned back to work, he was served with a warning letter which he refused to acknowledge and walked away deserting duty.

11. Whether the Claimant deserted or was dismissed depends on their communication with one another. To start with the contract between the Claimant and Respondent was verbal. The Claimant was never issued with any appointment letter. This letter would have been a pointer to how the parties wanted to relate.

12. In absence of such a letter and in view of the provision of Section 9(10) of Employment Act terms of engagement will be as submitted by the Claimant and Respondent has the burden of proof to state otherwise. The contract being verbal, it is also possible that the dismissal was also verbal because the Respondent was not in the habit of communicating with the Claimant in writing. The letter of warning allegedly written by Respondent may now on the same basis be an afterthought by the Respondent following the illegal verbal termination. In the circumstances, it is the Claimant’s word that carries the day as the Respondents have no proof that such letter was ever written nor even send to the Claimant through whichever means.

13. Having found that the Claimant was dismissed, I also find that under Section 44 of Employment Act there were no valid reasons to do so. The reason given by Claimant for his absence was to attend to a sick child and he avers that he obtained the requisite permission to be away. If the Respondent wanted to establish the truth, they should have subjected him to a disciplinary hearing as provided for under Section 41 of the Employment Act 2007. Since the Claimant was not given a hearing, I also find that his dismissal was unfair and unjustified in terms of Section 41 of Employment Act 2007.

14. I therefore award him as follows:

1. Unpaid salary for August 2010 = 10,467/=

2. 1 months salary in lieu of notice = 10,467=

3. 8 months salary as compensation for unlawful

termination = 10,467 x 8 = 83,736

TOTAL = 104,670/=

Less statutory deductions plus costs of this suit.

Read in open Court this 29th day of October, 2015.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Njuguna holding brief for Ms. Butoyi for the Claimant

Jomo holding brief Tolo for Respondent