[2015] KEELRC 661 (KLR)
The court found that the Claimant's termination was both unlawful and unfair because the Respondent failed to follow the mandatory procedures set out in the Employment Act, 2007. Specifically, the Respondent did not provide a valid reason for the termination, did not give the Claimant a hearing as required under...
Source-derived case information.
- Citation
- [2015] KEELRC 661 (KLR)
- Parties
- Claimant: Yusuf Guyo Odawa; Respondent: Roy Transmotors Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1751 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment for the Claimant.
- Judges
- HS Wasilwa
- Legal Topics
- Unfair Termination, Procedural Fairness, Employment Contracts, Remedies for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yusuf Guyo Odawa
Claimant
Roy Transmotors Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unlawful and unfair under the Employment Act, 2007.
- 2 Whether the Claimant is entitled to terminal benefits and damages for unfair termination.
Ratio Decidendi
The court found that the Claimant's termination was both unlawful and unfair because the Respondent failed to follow the mandatory procedures set out in the Employment Act, 2007. Specifically, the Respondent did not provide a valid reason for the termination, did not give the Claimant a hearing as required under Section 41, and did not prove that the termination was related to the Claimant's conduct, capacity, compatibility, or operational requirements. The Respondent also failed to provide a written contract, and the Claimant's evidence was uncontroverted due to the Respondent's absence. As a result, the court awarded the Claimant house allowance, service pay, and damages for unfair...
Court Disposition
Claim allowed. Judgment for the Claimant.
Orders
- The Respondent shall pay the Claimant Kshs. 230,625 as terminal benefits and damages for unfair termination.
- The Respondent shall pay costs of the suit and interest.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI
CAUSE NO. 1751 OF 2014
(Before Hon. Justice Hellen S. Wasilwa on 27th July, 2015)
YUSUF GUYO ODAWA…………..……..………………..……CLAIMANT
VERSUS
ROY TRANSMOTORS LIMITED ….…..………..……RESPONDENT
JUDGMENT OF THE COURT
The Claimant herein Yusuf Guyo Dawa filed his Memorandum of Claim on 8/10/2014 through the firm of Mwakio, Kirwa & Company Advocates. The Claimant avers that he was employed by the Respondents on 30/6/2011 as a Security Guard. The Certificate of Service (Appendix 1) bears evidence of this relation.
The Claimant avers that he served the Respondents with diligence and loyalty until 11/3/2014 when his services were terminated unlawfully.
It is the Claimant’s case that on this day he was assigned to go to a certain premise by his boss but he feared to go there as there had been theft at those premises. The boss then chased him out of the premises and prevented him from accessing it from that point. On 10/4/2014, he was paid 26,000/= and asked to go away being 1 months notice, 20 days salary and 18 days of leave.
The Claimant avers that he was not being paid leave allowance nor overtime despite working from 6 am to 6 pm and never used to go for off. He avers that he used to work even during public holidays. He stated that his salary was Kshs.12,500/= per month.
The Claimant further avers that his termination was unlawful and unfair as the Respondent failed to follow procedure laid down in Employment Act before terminating him and without proving that the reasons for termination were valid.
The Claimant therefore seeks that this court orders he be paid his termination benefits as per paragraph 7 of his Memorandum of Claim totaling 483,831. 75/= plus costs of this suit.
The Respondents were served with the summons to enter appearance and Memorandum of Claim on 20/10/2014 as per the affidavit of service filed in court on 9/6/2015. The Respondents never entered any appearance and neither did they file any response. This case therefore proceeded exparte.
There is proof that the Claimant worked for Respondent as per the Certificate of Service he was given upon termination on 11/3/2014. No appointment letter was however exhibited. This was the duty of the Respondent to give as provided for under Section 9 (1) (b) of the Employment Act.
In absence of a written contract, this court will rely on the evidence of Claimant wholly which is not controverted. The process of terminating the Claimant’s services appears to have been verbal and there is no evidence that he was given any hearing as anticipated under Section 41 of Employment Act 2007.
I therefore find that the termination of the Claimant was unlawful and unfair as under Section 45 (1) and 2 of the Employment Act 2007 which states as follows:
No employer shall terminate the employment of an employee unfairly.
A termination of employment by an employer is unfair if the employer fails to prove:
that the reason for the termination is valid;
that the reason for the termination is a fair reason:-
related to the employee’s conduct, capacity or compatibility; or
based on the operational requirements of the employer; and
that the employment was terminated in accordance with fair procedure.
I therefore find for Claimant and I award him as follows:
House allowance being 15% of the salary = 1875 x 33 months = 61,875
Service pay at the rate of 15% days for each year worked being 15/30 x 12,500 x 3 = 18,750/=
12 months salary as damages = 12,500 x 12 = 150,000/=
TOTAL = 230,625/= plus costs and interest
It is so ordered.
Read in open Court this 27th day of July, 2015.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Claimant - Present
No appearance for Respondent