1. In his Statement of Claim filed on 26th August, 2016, the Claimant pleaded among others that:
(i) At all material times to this suit, the Claimant was employed by the Respondent as a Lecturer/Academic Dean on 1st August, 2008 at a basic salary of Kshs. 40,000/- and House Allowance of Kshs. 10,000/- making his salary Kshs. 50,000/- per month up to January 2013.
(ii) The Claimant averred that his salary was increased in the month of January 2013 to a basic salary of Kshs. 45,800/- and House Allowance of Kshs. 10,000/- making his salary per month from January 2013 to the date of his unfair termination from employment Kshs. 55,800/.
(iii) The Claimant served the Respondent dedicatedly, unsavory and without any meaningful warning or lawful warning until 17th June 2016 when he was unfairly, unlawfully and unprocedurally terminated from employment.
(iv) On 8th January 2013, the Claimant was unlawfully suspended from duty based on untrue allegations that the he was involved in sexual misconduct with one Yvonne Sasaka.
(v) The Claimant further averred that his suspension from employment by the Respondent and subsequent creation of two boards on 16th January 2016 and 29th January 2016 was maliciously instigated to unlawfully terminate his employment because:
(a) No evidence of investigation was availed to him on the alleged sexual misconduct prior to and even after the trial on 16th January 2016 before the Trial Board.
(b) The particulars and result of the alleged sexual misconduct with Yvonne Sasaka were not availed to him then and even at the time of filing the suit and no criminal charges have been instituted against him.
(c) The Respondent entrusted the Claimant with the welfare of the students for over 9 years and no allegations of unbecoming sexual misconduct had ever arisen.
(vi) The Claimant averred that after appearing before the Trial Board on 16th January 2016, he was not allowed to resume duty and was referred for a further Trial Board contrary to the law.
(vii) Five months after the twin board’s suspension of the Claimant from employment on half salary, the Respondent summarily and without sufficient notice terminated his employment on 17th June 2016 after diligently serving for a period of 9 years.
(viii) The Claimant averred that it is settled law that suspension is not a final disciplinary action.
(ix) The Claimant further averred that the Respondent did not act in accordance with justice and equity and failed to prove valid reason for termination as envisaged under Section 45 (2) of the Employment Act.
(x) The Claimant further avers that the termination of his employment was unlawful and unfair on the following grounds:
(a) The Respondent did not give the Claimant termination notice as provided under Section 35 (1) c and 36 of the Employment Act.
(b) The Respondent terminated his services without proving that the reason for termination was valid under Section 43 and 45 of the Employment Act.
(c) The Respondent failed to pay the Claimant his 12 months wages for loss of employment as provided under Section 49( c) of the Employment Act.
(d) The Respondent denied the Claimant his lawful leave days contrary to Section 28(1) of the Employment Act and the employment contract.
(e) The Claimant worked overtime without pay contrary to the employment contract and the law.
(f) The Respondent declined to pay the Claimant his half salary from 8th January 2016 to 17th June 2016 when his employment was terminated.
(g) The Respondent declined to give the Claimant his Certificate of Service contrary to Section 51 of the Employment Act.
(xi) The Claimant appealed the decision unlawfully suspending him from employment but his appeal was not considered and no hearing was accorded to him. The Appeal process lasted 5 months and the Claimant never received communication during the period.
(xii) The Claimant avers that the Respondent violated his employment rights contrary to the Constitution and under Sections 26,27,28,35,41,43,44,47,49 and 51of the Employment Act and the ILO Convention No. 158.
2. The Respondent filed a Statement of Response on 28th June 2017 in which it averred inter alia:
a. That the Respondent is a Ministry of New Testament Church of God-Kenya which is a Christian Organization whereby all employees including the Claimant committed themselves vide the employment contract and constitution to live a Godly life and spirit as they do in service to Jesus Christ, a committed Christians.
b. The Claimant was not entitled to House Allowance of Kshs. 10,000/-.
c. The allegations of sexual misconduct were leveled against the Claimant and an independent Investigation Committee was constituted as per the Respondent’s policy where the Claimant and Yvonne Sasaka testified and the Claimant had sufficient time to defend himself.
d. The committee having heard the Claimant, Yvonne Sasaka and other witnesses came to the conclusion that the Claimant was culpable and the Trial Board sat and deliberations also found the Claimant to be culpable of sexual misconduct based on which the National Administrative Bishop issued the suspension letter to the Claimant for a period of one year from 14th February 2016.
e. The main purpose of the suspension was for the restoration of the Claimant with the help of the District Overseer to reform him after which he would resume duties but the Claimant declined to abide by the reformation process leading to the termination of his contract.
f. The Claimant’s employment was terminated on account of:
(a) Ignoring and/or violating the process of reformation as stated in the suspension letter of 8th February 2016.
(b) Insubordination against the National Administrative Bishop.
(c) Purporting to sign Bank documents as key signatory while on suspension.
(d) Colluding with church Treasurer to receive tithe meant for the supervising pastor.
(e) Failing to furnish the National Administrative Bishop with the requisite ministerial reports.
(f) Behaving in a manner likely to cause breach of peace by, together with other, pulling down college posts and barbed wire on 28th September 2016.
(g) Threatening to kill the Respondent’s security guards per OB38/28/9/2016 reported at Langas Police Station.
g. The Claimant is not entitled to overtime as his work schedule was flexible only working two or three hours per week.
h. The Claimant is not entitled to leave because he took up study leave and sabbatical leave sometimes in 2014.
i. The Certificate of Service is available for the Claimant’s collection.
j. The Respondent never received an email from the Claimant requesting for an appeal.
k. The investigation process, suspension and subsequent termination of the Claimant’s employment complied with the ILO Convention No. 158
3. At the hearing, the Claimant stated that he was employed in August 2008 as Lecturer and Academic Dean. He testified that New Testament Church of God was not his employer.
4. The Claimant also testified that his termination of employment was not in accordance with clause 5.2 of the Respondent’s Constitution as he was not invited to any of the Respondent’s committees and no notice to that effect was issued to him.
5. The Claimant further testified that there was no Trial Board but an Investigations Board and the Trial Board was constituted by the Church of God Bishops and not the Respondent. Therefore it was his case that on 15th January 2016 he did not appear before the Respondent and before terminating his employment, the Respondent did not make any invitation or issue a Show Cause Letter. That the Respondent never suspended him from duty save for the termination letter.
6. He further testified that on 29th January 2016, he attended the Trial Board before the Church of God and which was an error because he was not a pastor as his ministry with the Church of God had ended in 2013.
7. Further that in the course of his duties, he was not answerable to Bishop but he was to the Director and Chair of the Board at the Respondent, Beneah and Rudolf.
8. He also stated that the allegations of sexual misconduct were forwarded and dealt with by the Church which was not his employer.
9. He denied taking a sabbatical leave in 2014 stating that he went to a working tour in the USA and not leave.
10. Regarding his final dues, he said he was not paid salary in lieu of notice of Kshs. 55,800/=. He further stated that he never went on leave for the period between 1st August 2008 and January 2013 and his claim was Kshs. 157,500/=. He also claimed allowances due of Kshs. 136,000/= and worked overtime. The Claimant also stated that he was paid half salary for 6 months and so claimed payment for the unpaid half salary for the 6 months.
11. In cross examination he stated that at the time of termination, he was not a pastor at the Church of God and has no pastor’s Card because his term as pastor had expired in 2013 and was not renewed by the Bishop. That he was a pastor between 2011 and 2013.
12. In distinguishing the Respondent and the Church, the Claimant stated that the Respondent was administered under the Ministry of Education with a BOG and a Principal of College but the Church had different administrative Bishop and BOG of the Respondent as Administrators.
13. He further stated that he was not found guilty of sexual misconduct after the investigations and denied threatening to kill the Respondent’s Guards.
14. In re-examination, the Claimant stated that after Beneah became the acting Director of the Respondent, there was bad blood and disagreements between them because the former did not want the Claimant to be Project Manager of the Respondent.
15. It was his further testimony on cross examination that he had 3 classes in a day and was the main lecturer
16. The Respondent’s first witness, Rev. Jurgen Rudolph informed the Court that he was the Chairman of the Governing Council of the Respondent.
17. He further stated that the letter dated 8th January 2016 served as invitation to the investigating board to enable the Claimant come with a witness to exonerate himself.
18. It was his evidence that once the college concluded the investigations, it handed over to the Church according the Constitution which provided for the mechanisms of dispute resolution.
19. In cross examination he stated that the Claimant was an employee of the Respondent and was issued with a letter of appointment.
20. He also stated that the contract of employment made no reference to the Church Constitution.
21. According to him, the Claimant did not appear before the Academic Council and other organs specified under Clause 5.2 of the College’s Constitution.
22. On the composition of the Trial Board, it was his case that the Trial Board consisted of members of the Church.
23. In re-examination, the Claimant stated that the Respondent is a ministry of the New Testament Church of God in Kenya.
24. The Respondent’s second witness, Beneah Alukwe Amakhungu informed the Court that he was a Director of the Respondent and pastor of a church in Mombasa.
25. It was his case that the Claimant was paid half of his salary during suspension and was summarily dismissed hence not entitled to one month notice.
26. On cross-examination it was his case that the Respondent was registered by the Ministry of Education to offer Certificates and Diplomas and but had no Charter of its own.
27. He also stated that the Claimant refused to cooperate in the investigations about his sexual misconduct.
28. The Respondent’s third witness, David Bwire informed the Court that he was the National Administrative Bishop of the Respondent.
29. He stated that a pastor does not cease to be one simply because the Identity Card has expired.
30. It was his further testimony that the National Executive Council of the Respondent also deliberated on the issue of sexual misconduct and recommended the revocation of the Claimant’s ministry.
31. On cross examination, it was his case that the constitution of the Respondent provided for the position of the Academic Affairs Council and College Disciplinary Council to deal with disciplinary matters of the Respondent.
32. The Respondent’s fourth witness, Jairus Mosoti informed the Court that he was the District Pastor of the Respondent who took over after the Claimant. It was his testimony that the Claimant was never restored to employment.
33. The Claimant filed written submissions on 3rd February 2023. The Claimant submitted inter-alia that the Respondent had unlawfully, unprocedurally and unfairly terminated his employment. The Claimant relied on Section 41,43 and 45 of the Employment Act, 2007 and submitted that he was not given any show cause letter or invited for disciplinary hearing.
34. It was the Claimant’s further submission that the Respondent’s disciplinary process was opaque and unfair and reliance was placed on the decision in the case of Anthony Mkala Chitavi vs Malindi Water & Sewerage Company Limited (2013) eKLR and Naima Khamis vs Oxiford University Press (EA) Limited (2017) eKLR to submit that there was no substantive fairness in the termination process
35. He also relied on the case of Walter Ogal Onuro vs Teachers Service Commission (2013) eKLR to submit that the Respondent failed in the fairness test and there was no substantive justification for determination of his employment. Further, the Claimant relied on the case of Alphonce Machanga Mwachanya vs Operative 680 Limited (2013) eKLR to assert that he was not heard to exonerate himself.
36. Counsel further submitted that the Respondent breached Clause 5.2 of its Constitution in that the Church was an Appellate entity which ought not to have tried the Claimant in the first instance. Reliance was placed on the case of Mary Chemweno Kiptui vs Kenya Pipeline Company Limited (2014) eKLR to further assert that the Respondent did not accord the Claimant a fair hearing.
37. Counsel also submitted that the Claimant was not involved in any unbecoming sexual misconduct and the Respondent failed to prove this as reason for termination.
38. The Claimant thus submitted and prayed for all the reliefs in the Memorandum of Claim.
39. The Respondent on the other hand filed its written submissions on 7th February 2023. Counsel submitted that the Claimant’s employment contract was procedurally terminated as he was lawfully suspended from duty on allegations of sexual misconduct to which he was given a hearing and after the Claimant refused to comply with the assigned duties.
40. Counsel further submitted that the Claimant is not entitled to any of the reliefs sought and the Claim should be dismissed with costs save for the certificate of service which he submitted was available for the Claimant’s collection.
DETERMINATION
41. The Court has reviewed and considered the pleadings, testimonies and submissions by both counsel in support and opposition to the case. The Court has also considered authorities relied on by Counsel. Counsel for the Respondent did not however cite any legal authorities.
42. The issue for determination in this case is whether the termination of the Claimant’s employment was procedural and fair.
43. This Court has stated previously that it is not within its realm to over-analyze the reason for which employment has been terminated. The test usually is the reasonable test. That is to say, would a reasonable employer put in the circumstances dismiss”? If the answer be in the affirmative, the court will not interfere.
44. In this case, the Respondent suspended the Claimant from duty on 8th January 2016 and proceeded to terminate his services on 17th June 2016.
45. The Claimant’s termination from employment was as a result of allegations of unbecoming sexual misconduct in the course of employment.
46. Whereas the Claimant’s case is that the allegations of unbecoming sexual misconduct against him were untrue, the Respondent maintained that the allegations were confirmed as true after a hearing was conducted.
47. The Claimant further pleaded unfair and unprocedural conduct in the process of his termination from employment and blamed the Respondent for not according him fair procedure and that any trials conducted by the Respondent were unlawful and contrary to the Respondent’s Constitution as they were conducted by the Church and not the Respondent. Further, the Claimant maintained that the Respondent erred in failing to consider his Appeal. However, no evidence was produced in Court on this allegation of the existence of a request for Appeal.
48. On its part, the Respondent case is that the process of termination of the Claimant’s employment was fair and procedural and the Claimant was suspended for one year from 14th February 2016 on half salary but that he declined to abide and cooperate with the Respondent in the reformation process following suspension and as a result the Respondent terminated his services on 17th June 2016. The Respondent further maintained that the letter dated 8th January 2016 served to invite the Claimant to the disciplinary process.
49. Regarding procedural fairness, it was held in the case of Walter Ogal Anuro -vs- Teachers Service Commission (2013) eKLR that for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness.
50. The Court of Appeal further in the case of Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR observed thus;
“there is ample authority that decision making bodies other than courts and bodies whose procedure are laid down by statute are masters of their own procedures. Provided they achieve the degree of fairness appropriate to their task. It is for them to decide how they will proceed.”
51. In the instant case, under Clause 5.2 of the Constitution of the Respondent produced in evidence, it is stated as follows:
In matters rising beyond the powers of the Director/President and or Board of Governors, the College will follow the provided avenues of conflict resolution through the Church of God World Mission Policy Manual and the Minutes of the General Assembly of the Church of God.
52. Further, the Report of the Investigation Committee on the allegations of sexual misconduct against the Claimant held on the 15th January 2016 under the clause on Appointment of the Committee stated as follows:
The Regional Superintended for East Africa and the National Overseer of Kenya in consultation with the Board Chairman of Discipleship College appointed an Investigations Committee to look into the allegations of sexual misconduct levelled against Brother James Kagari on the 8th January 2016.
53. From the above, it is clear that the Disciplinary process was initiated and conducted by the Regional Superintended in consultation with the Board Chairman of the Respondent College.
54. On the burden of proving and justifying the grounds of termination of employment, Section 47(5) of the Employment Act stipulates as follows: -
‘For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of
justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’’
55. Regarding substantive justification, the Court in Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR held as follows:
‘In terms of section 43 of the Employment Act, an employer will be deemed to have a substantive justification for terminating a contract of service if he/she genuinely believed that the matters that informed the decision to terminate existed at the time the decision was taken. In other words, it is not a requirement of the law that the substantive ground informing the decision to terminate must in fact be in existence. All that is required is for the employer to have a reasonable basis for genuinely believing that the ground exists even if it later turns out that it, in fact, did not. In my view, what the law is concerned with here is whether the circumstances surrounding the decision to terminate would justify a reasonable man on the street, standing in the same position as the employer, to reach a similar decision as him/her regarding the termination.’
56. Whereas the Claimant maintains that the Church and the Respondent were two different entities, the Church and the Respondent also shared common offices and personnel. For instance, Rev. Jurgen Rudoph was the Coordinator of the Church and also Board Chairman of the Respondent who participated in the appointment of the Committee that investigated the allegations of sexual misconduct against the Claimant. Therefore, the Claimant’s allegation that the Church erred in leading the Disciplinary process is declined also because this Court will not dictate or interfere with how the Disciplinary Committee of the Respondent should be constituted, without apparent bias, as this is an internal process of the Respondent. It is also not in dispute that the Claimant was a Pastor at the Church even though it is contested whether and when he had stopped to be a Pastor thereat.
57. The Claimant herein was issued with a letter dated 8th January 2016 suspending him with immediate effect and inviting him to appear before a Trial Board to be held at the Respondent on 15th January 2016.
58. Subsequently, the Respondent issued the Claimant with a letter dated 19th January 2016, informing that the Claimant would remain under suspension and a Trial Board would be constituted on 29th January 2016 to hear him on the issue of sexual misconduct. The letter was produced by the Respondent and on the face of it, the Claimant received it on 20th January 2016. It is not in dispute that the Claimant attended the Disciplinary session.
59. Even though the Claimant claimed that the Disciplinary process was levelled against him as a Pastor and not employee of the Respondent, I note that the letter dated 14th February 2016 suspending the Claimant as Pastor came after he was already suspended as Lecturer/ Academic Dean on 8th January 2016 following the allegations of sexual misconduct. Similarly, the letter terminating his services dated 17th June 2016 made reference to the Respondent as the entity terminating his service.
60. This Court is satisfied that the Respondent accorded the Claimant a hearing where the Claimant explained his case and the Respondent arrived at a verdict. To this extent the Respondent met the procedural fairness test hence the termination is deemed fair.
61. The Law under Section 44 (4) (g) of the Employment Act, 2007 stipulates as follows: -
‘Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if:-
(g) An employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.’
62. Further, Section 45 of the Employment Act, 2007 in reference to unfair termination stipulates as follows:
Unfair termination
(1) No employer shall terminate the employment of an employee unfairly.
(2) A termination of employment by an employer is unfair if the employer fails to prove—
(a) that the reason for the termination is valid;
(b) that the reason for the termination is a fair reason—
(i) related to the employee’s conduct, capacity or compatibility;
or (ii) based on the operational requirements of the employer; and
that the employment was terminated in accordance with fair procedure.
(3) An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated.
(4) A termination of employment shall be unfair for the purposes of this Part where— (a) the termination is for one of the reasons specified in section 46;
(b) or it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.
(5) In deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, a labour officer, or the Industrial Court shall consider—
(a) the procedure adopted by the employer in reaching the decision to dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision
(b) the conduct and capability of the employee up to the date of termination;
(c) the extent to which the employer has complied with any statutory requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41
(d) the previous practice of the employer in dealing with the type of circumstances which led to the termination; and
(e) the existence of any pervious warning letters issued to the employee.
63. This Court fully adopts the above position as the correct position in law to be invoked by the Respondent when contemplating termination of the Claimant’s employment. RW1 outlined the above procedures as having been undertaken by the Respondent before terminating the Claimant’s employment and which I find was done in accordance with Section 43 of the Employment Act and which justified the reason for termination. The letter inviting the Claimant to the Trial Board dated 8th January 2016 and produced by the Claimant precisely set out the charge of the alleged sexual misconduct as well as the particulars and was issued 7 days to the intended Trial Board hearing. The Claimant did not dispute timely service of this letter.
64. Therefore, there is no basis for the allegation that the procedure employed by the Respondent to terminate the Claimant’s employment was unprocedural.
65. On the issue of whether the suspension of the Claimant was lawful, the Claimant alleged and submitted that the suspension was unlawful and contrary to the settled principle that suspension is not a final Disciplinary process. The Respondent on the other hand contended that the suspension was necessary to enable investigation into the allegations of sexual misconduct against the Claimant.
66. In assessing the legality of suspension, the Court of Appeal in Mutwol v Moi University (Civil Appeal 118 of 2019) [2022] KECA 537 (KLR) (28 April 2022) adopted the position in the Canadian case of Cabiakman v. Industrial Alliance Life Insurance Co., 2004 SCC 55, [2004] 3 S.C.R. 195, in which the Supreme Court laid down several factors that can guide the courts in determining whether an employer was justified in deciding to temporarily suspend an employee thus:
“This residual power to suspend for administrative reasons because of acts of which the employee has been accused is an integral part of any contract of employment, but it is limited and must be exercised in accordance with the following requirements: (1) the action taken must be necessary to protect legitimate business interests; (2) the employer must be guided by good faith and the duty to act fairly in deciding to impose an administrative suspension; (3) the temporary interruption of the employee’s performance of the work must be imposed for a relatively short period that is or can be fixed, or else it would be little different from a resiliation or dismissal pure and simple; and (4) the suspension must, other than in exceptional circumstances that do not apply here, be with pay”
67. In the case of Galgalo Jarso Jillo v Agricultural Finance Corporation (supra) the Court stated as follows:
Therefore, it does appear to me that to unilaterally withhold the entire pay of an employee merely because he is on suspension would be in breach of the contract of service unless sanctioned by law. What appears to be a reasonable middle ground to ensure the contract remains alive during the disciplinary process is the practice of withholding a portion of the pay even as the other is released. I have made these comments in my decision because part of the claims by the Claimant relate to the period during which he was on suspension.
68. It is not in dispute that the Respondent suspended the Claimant and consequently subjected him to half salary for the suspension period up to 17th June 2016. During the suspension period, the Claimant was invited and participated in the Investigation Committee meetings and a Trial Board was subsequently constituted to determine the findings of the Investigation Committee and the Respondent produced in evidence the minutes and reports of the findings that led to the termination of the Claimant’s employment.
69. This Court finds that the suspension of the Claimant with half salary was justified in the circumstances. It was necessary to ensure investigations into the allegation of sexual conduct and there is no bad faith on the part of the Respondent who paid the Claimant half salary while on suspension.
70. The Claimant made several heads of claim such as salary in lieu of notice. I have considered the circumstances of this matter, the alleged conduct of the Claimant and find that the dismissal on the account given by the Respondent was summary dismissal and was valid and fair and the Claimant is not entitled to salary in lieu of notice.
71. The Claimant also pleaded for unpaid leave for the entire period of service. The Respondent position on leave was that it could not confirm whether the Claimant had gone for leave. RW1 testified that the Claimant went on sabbatical leave and study leave and that he assumed the Claimant being in leadership position would know when to take leave or overtime. On his part, the Claimant testified that indeed in 2014, he went to USA for a working tour and not leave and which was not annual leave.
72. The contract of employment provided for a basic salary of Kshs. 50,000/= as payable to the Claimant. The Respondent denied that the Claimant was entitled to allowance of Kshs. 10,000/- as pleaded. The Claimant did not provide any evidence to prove that his salary was increased or that he was entitled to allowance. This Court thus finds that the Claimants monthly salary was Kshs. 50,000/-.
73. Further, the Respondent did not significantly dispute leave and failed to satisfactorily address this claim or file any work records to confirm that the Claimant had completed and or taken his leave days at the time of summary dismissal on 17th June 2016. The contract of service provided for 21 days annual leave with monthly net salary divided by 30 days to get a daily rate. Consequently, I shall award leave under this head based on the monthly salary of Kshs. 50,000/- for the 7 years when the Claimant was entitled to leave.
74. The Claimant also pleaded for overtime and testified that as Academic Dean, he worked from 7.30 a.m to 9p.m over and above the normal time of 8a.m to 5.p.m. However, the Claimant did not come out clear in which area and approximately when and to what intervals he worked overtime. Even though it was the responsibility of the employer to keep records, where an employee alleges overtime it is important that he or she lays background about the nature of work being performed that required working overtime and at what intervals and the period the overtime was worked. A mere assertion that an employee worked overtime is not enough to shift the burden on the employer to produce records. The records may not be there because there was no overtime worked. Therefore, the prayer for overtime worked and not paid fails as the Claimant did not prove that he worked overtime for the period that he was in the employment of the Respondent.
75. Pursuant to Section 51 of the Employment Act, the employer is obligated to issue a departing employee with a Certificate of Service. As was stated by Radido J in Transport Workers Union v African Safari Diani Adventure [2013] eKLR, this certificate is, by law, the right of every employee leaving employment irrespective of the circumstances under which he has left. If not for anything else, the instrument is critical to the employee because it signifies closure of the employment relation between the parties.
76. To this extent the court is satisfied that the Respondent followed the law in termination the Claimant’s employment. However, the Claimant is entitled to unpaid leave and the Certificate of Service.
77. In conclusion the Claimant’s case partly succeeds as follows:
(a) A Claim for the Declaration that the Claimant’s termination of employment by the Respondent was malicious, unlawful, unfair, unprocedural and a fundamental violation of the rights of the Claimant is dismissed.
(b) A Claim for compensation for unlawful termination of employment is dismissed.
(c) The Respondent be and is hereby directed to issue a Certificate of Service to the Claimant.
(d) The Claimant is entitled to a cumulative unpaid leave of Kshs. 280,000/=.
(e) The Claim for overtime is dismissed.
(f) The Claim for unpaid half salary while on suspension is dismissed.
(g) The Amount awarded in (d) above to attract interest at court rates from date of Judgement until payment in full.
(h) Each party to bear their own costs.
It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this ………day of……………………….…2023
Abuodha J. N.
Judge
In the presence of:-
……………………………………….. for the Claimant
…………………………………………for the Respondent