1. In his Statement of Claim filed on 23rd October, 2019, the Claimant in this suit pleaded among others that:
(i) At all material times to this suit, the Claimant was employed by the Respondent as a Security Guard with effect from November, 2012.
(ii) At the time of termination from employment, the Claimant was earning a gross salary of Kshs. 19,000/-.
(iii) The Claimant served the Respondent with loyalty, diligence and full dedication until 12th April 2019 when he was unfairly and unlawfully orally terminated from employment.
(iv) The Claimant averred that the Respondent unlawfully and unprocedurally declared him redundant on unknown grounds and without following the procedure under Section 40 of the Employment Act.
(v) Further, that the decision to declare the Claimant redundant was malicious, ill-willed and calculated to form basis to unlawfully terminate his services as there was also no prior redundancy notice.
(vi) The Respondent failed to discharge the obligations imposed under Section 45(2) of the Employment Act leading to unfair summary dismissal for want of substantive justification.
(vii) The Claimant also pleaded unpaid leave for 8 years, one month payment in lieu of notice, underpayments, transport allowances, overtime and services.
(viii) The Claimant thus sought reliefs as follows:
a) A declaration that the Claimant suffered unfair, unlawful and unprocedural oral termination of employment by way of redundancy and is entitled to general damages.
b) Kshs. 3,195,404.50/- in terminal benefits.
c) Certificate of Service.
2. Similarly, in Eldoret Cause No. 51 of 2019, the Claimant therein filed his Memorandum of Claim on 23rd October 2019 and pleaded among others:
(a) At all material times to this suit, the Claimant was employed by the Respondent as a Security Guard with effect from April, 2015.
(ix) At the time of termination from employment, the Claimant was earning a gross salary of Kshs. 19,000/-.
(x) The Claimant served the Respondent with loyalty, diligence and full dedication until 1st July 2019 when he was unfairly and unlawfully orally terminated from employment.
(xi) The Claimant averred that the Respondent unlawfully and unprocedurally declared him redundant on unknown grounds and without following the procedure under Section 40 of the Employment Act.
(xii) Further, that the decision to declare the Claimant redundant was malicious, ill-willed and calculated to form basis to unlawfully terminate his services as there was also no prior redundancy notice.
(xiii) The Respondent failed to discharge the obligations imposed under Section 45(2) of the Employment Act leading to unfair summary dismissal for want of substantive justification.
(xiv) The Claimant also pleaded unpaid leave for 4 years, one month payment in lieu of notice, underpayments, transport allowances, overtime and services.
(xv) The Claimant thus sought reliefs as follows:
d) A declaration that the Claimant suffered unfair, unlawful and unprocedural oral termination of employment by way of redundancy and is entitled to general damages.
e) Kshs. 1,932,661/- in terminal benefits.
f) Certificate of Service.
3. The Respondent filed a Statement of Response in this Cause on 27th November 2019 in which it averred inter alia:
a. That the Claimant was employed as Security Officer from 9th January 2014.
b. On 12th April 2019, the Claimant’s services at Laminates Tubes Eldoret were temporarily suspended on account of lack of integrity, failing to adhere to instructions and allowing unauthorized persons to enter the premises.
c. That a disciplinary meeting was held on 29th April 2019 in which the Claimant attended and admitted the accusations and apologized.
d. The Respondent then directed the Claimant to write a letter of commitment, sign a warning letter and be reinstated but remain on the bench until when there was a vacancy for redeployment. The Claimant did so on 30th April 2019.
e. The Claimant was redeployed to Nairobi to work but he declined and abandoned his employer.
4. The Respondent also filed a Statement of Response in Cause No. 51 of 2019 stating as follows:
a. That the Claimant was employed as Security Officer in 2016 on temporal assignments.
b. On 30th June 2019, the Claimant’s temporal assignments were terminated upon Galaxy Paints and Courting Limited terminating the contract with the Respondent.
c. That the Claimant was thereafter redeployed to Nairobi after he declined to work on the day shift in Eldoret.
d. The Claimant absconded work and abandoned the Respondent.
e. There was no need of giving the Claimant an opportunity to defend himself because after being recalled for redeployment, the Claimant refused and abandoned the Respondent without any accusations.
5. On 21st September 2021, by consent of the parties, this suit was consolidated with Eldoret ELRC Cause No. 51 of 2019 and directions were given for the matter to proceed under this file.
6. At the hearing, CW1, John Barasa stated that he was employed in 2012 and worked until 2019. He also testified that he did not allow unauthorized persons in the premises of the Respondent’s client because the person who entered was owed monies by the Respondent’s client.
7. Further, he testified that he never refused the transfer to Nairobi and he was never issued with a letter of transfer or warning letter from the Respondent.
8. He further testified that he was called for a disciplinary hearing but the meeting found him not guilty of the allegations. That he never wrote any apology letter or admitted making any mistakes. Further that his services were terminated verbally by the Brach Manager of the Respondent who said his assignments had ended and when he was told to wait to be redeployed, the Respondent never called him back.
9. Regarding his final dues, he stated that he never received any salary. That he was never issued with terminal dues and a certificate of service. In cross examination he stated that he was employed in 2012 and not 2014.
10. He also stated that he was verbally told that his contract had ended. It was his case that he apologized so that he could be reinstated to work because he was still at work but was not being assigned duties.
11. He further stated that he returned the Respondent’s uniform and Identity Card.
12. It was also his case that he used to work up to 6.30 p.m hence the claim for overtime.
13. On his Part, CW2, Cornelius Akala Shisungu testified that he was employed in September 2015 and worked until 30th June 2019 as a Guard and was deployed to Nairobi where he worked for 3 years. In 2018, at his request, the Respondent transferred him to work at in Eldoret. He was later taken to work at the Crown Paints in Eldoret from 15th June to 30th June 2015. That in the evening, his supervisor told him not to report and to see the Manager instead.
14. He further stated that he found the manager who told him that there was no work for him and he should go home and wait until when he would be called back to work. It was his case that he never abandoned work or received any transfer letter back to Nairobi. However, that the Respondent never gave him any work assignments thereafter.
15. In cross examination, he stated that he was employed in 2015 and not 2016 and he used to earn Kshs. 726/- per day up to the time of his termination. That he used to work from 6.00 a.m to 6.00p.m on day shift and 6.00 a.m to 6.00p.m on night shift.
16. The Respondent’s first witness, Patrick Nzomo testified on 22nd September 2021 and was recalled for further cross examination on 15th February 2023. He informed the Court that he was the Respondent’s Branch Manager of the Eldoret Branch.
17. He further stated that the 1st Claimant was not terminated from employment as he refused work. That the Director called him saying he wanted CW1 changed immediately because CW1 had defied instructions by the Respondent’s customer not to let an unauthorized person in the premises but whom he let in to the contrary.
18. It was his evidence that the Respondent considered CW1 negligent and later suspended him from duty for two weeks in writing.
19. He further testified that CW1 was called for disciplinary hearing on 29th April 2019 and in the presence of the Shop Steward where he admitted his own negligence and apologized. It was then resolved that he be reinstated but to remain on the bench until there was a vacancy or assignment but the he refused to go to Nairobi for redeployment and therefore absconded duties.
20. On the case of the CW2, RW1 testified that CW2 was employed as a Security Guard on 11th February 2016 at Galaxy Paint where he worked until June 2019 when the contract ended.
21. It was his further testimony that CW2 was moved from the work station in Eldoret because the client wanted one Guard and a dog handler and CW2 was not a dog handler. However, that CW2 was moved to day shift but he refused and further refused the request to be redeployed to Nairobi. It was his case that the Claimants were not declared redundant.
22. In cross examination he stated that CW1 was terminated on account of negligence where he admitted wrongdoing and apologized. That he deserted duty.
23. He also stated that CW2 on the other hand refused to work on day shift and only wanted night shift and was not paid because he never worked.
24. According to him, the Claimants were still employees of the Respondent except that their contracts had expired and they had to report to the Human Resource Office at Nairobi for redeployment but they refused.
25. In re-examination, the witness stated that the Claimants were on temporary contracts and were paid daily wage. That they were not paid between April and July because they had not worked.
26. The Respondent’s witness, RW2, Anthony Yego adopted his witness statement as his evidence in chief.
27. In cross-examination it was his case that the Claimants had similar contracts to his.
28. He also stated that he withdrew his case against the Respondent 5 days after the Claimants filed theirs.
29. He further stated that though he was deployed to Nairobi, he was not comfortable working there and he waited when the Respondent requested him to wait until a vacancy would arise in Eldoret where indeed it arose and he was redeployed in November 2019.
30. He stated that he was not paid between April and October 2019 but he resumed duties and had no claim against the Respondent.
31. It was his further testimony that the Respondent never terminated his services.
32. The Claimants filed their written submissions on 24th February 2023. The Claimants submitted inter-alia that there was nothing to show that the Claimants were employed on temporal contract and urged the Court to find that they were employed on permanent contract.
33. Counsel further submitted that the Respondent never issued the Claimants with a written request for transfer but unlawfully witheld their salary from April to October 2019 on the unfounded pretext that they had absconded duty.
34. It was the Claimants’ further submission that the Claimants’ contracts did not come to end by effluction of time and instead it is the Respondent who unlawfully purported to render their services redundant.
35. Reliance was placed on the decision in the case of Godfrey Langat versus Elkawa Enterprises Limited Nkuru ELRC Cause No. 433 of 2013.
36. The Respondent on the other hand filed its written submissions on 15th March 2023. Counsel submitted that CW1’s employment contract was procedurally terminated as the Claimant was present during the disciplinary hearing per the minutes and commitment letter produced in evidence.
37. Counsel further submitted that the Claimants case was not a case of redundancy but desertion and absconding of duty where the Claimants refused to wait for assignments to arise and so abandoned the Respondent.
DETERMINATION
38. 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.
39. The issue for determination in this case is whether the termination of the Claimant’s employment was fair and lawful.
40. 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.
41. In this case, the Respondent suspended CW1 from duty on 12th April 2019 for two weeks.
42. CW1 pleaded and testified that he was employed in November 2012 and not in 2014. CW2 stated that he was employed in 2015 and worked until 30th June 2019 when his services were unlawfully terminated.
43. The Respondent produced an appointment form dated 9th April 2014. The document however did not provide for the payable salary or wages or duration of employment. CW1 never produced any contrary records to show that he was employed before April 2014. This Court finds 9th April 2014 as the date CW1 was employed.
44. RW1 testified that CW2 was employed on 11th February 2016. CW2 asserted that he was employed in 2015. However, the appointment form produced by the Respondent shows that it was dated 11th February 2016. The document however, like in the case of CW1, did not provide for the payable salary or wages or duration of employment. CW2 never produced any contrary record to show that he was employed in 2015. This Court finds 11th February 2016 as the date C21 was employed.
45. On the procedure for termination from employment, CW1 asserted that he was never given a termination notice. The Respondent maintained that it granted CW1 a hearing where he admitted his own negligence and was subsequently placed on the bench until such a time when his assignments would arise.
46. 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.
47. On 12th April 2019, the Respondent issued CW1 with the notification of suspension for two weeks on account of failing to uphold assignment instructions by allowing unauthorized person to the premises of its client.
48. Subsequently on 29th April 2019, the Respondent invited CW1 to the Disciplinary Meeting. However, there is no record of the minutes or deliberations of the meeting. The Respondent only found that CW1 had admitted the accusation and apologized and had further written a commitment letter and signed a warning.
49. In my view, the conduct of the Respondent towards CW1 cannot be said to have been procedural, fair and lawful.
50. Whereas CW1 testified that he apologized merely so that the Respondent could reinstate his services, it is clear that the Respondent did not accord CW1 an opportunity to exonerate himself.
51. In the same spirit, the Respondent did not expressly state whether it would terminate the services of CW1 or whether he would resume duties after 12th April 2019. It is absurd for the Respondent to maintain as they did in their pleadings and testimony that CW1 was put on the bench to await to be called into employment as soon as his assignments would arise. For so long as the Respondent intended to keep CW1 in employment, it ought to have continuously assigned him duties and paid him. Otherwise, without a termination letter, this court finds that the Respondent constructively terminated the services of CW1.
52. In the case of Richard Nyaundi Marasi v Board of Management, Geturi Mixed Secondary School [2017] eKLR, the Court held that:
…a distinction should be made of the two facets of the definition of constructive dismissal: (i). The employer making a unilateral alteration or breach of the employment contract to the detriment of the employee. ii. The employer making or otherwise permitting working conditions of the employee to be intolerable for him to continue working.
53. Further in the case of Benuel Mariera V Awand Enterprises Limited Cause No 191 of 2013, the Court defined constructive termination as follows:
It is trite law that when an employer by action or omission materially breaches the contract or otherwise makes it impossible for an employee to perform his contract of employment then the contract is deemed to have been constructively terminated by the employer.
54. Therefore, by purporting to keep CW1 in employment without tasks and salary, the Respondent constructively terminated the services of CW1.
55. On the part of CW2, the Respondent maintained that CW2 declined an offer for transfer to Nairobi and abandoned his services. CW2 on the other hand asserted that he never received any transfer letter from the Respondent.
56. Like in the case of CW1, there is no record of termination letter or request for transfer or redeployment produced in Court for CW2.
57. The Respondent thus kept the services of CW2 in abeyance without any justification and by purporting to keep CW2 in employment without tasks and salary, the Respondent constructively terminated the services of CW2.
58. The Claimants made several heads of claim such as salary in lieu of notice. I have considered the circumstances of this matter, the conduct of the Respondent and find that they are entitled to salary in lieu of notice.
59. The Claimants also pleaded for unpaid leave for the entire period of service. The Respondent did not make any rebuttal to the prayer for annual leave.
60. It is not only good practice but a legal requirement that an employer keeps records relating to persons in their service and I have no doubt in my mind that these records include a leave roaster or forms filled by employees when requesting to go on leave and the days for which they have asked to take. For the Respondent not to have produced evidence relating to the Claimants’ leave, goes to confirm to this Court that CW1 worked for 5 years up to 12th April 2019 without leave or payment in lieu thereof. Moreover, no evidence was rendered to show that CW2 took leave or was paid in lieu of the accrued leave days for the 3 years he worked up to 30th June 2019.
61. The contract of employment did not provided for the payable basic salary. The Claimants pleaded and testified that their monthly salary was Kshs. 19,000/=. The records produced by CW1 in evidence show that his basic salary was Kshs. 16,782/= in April 2019 when his services were terminated. This Court thus finds that CW1’s Basic monthly salary was Kshs. 16,782/=.
62. On the part of CW2, his records indicate that his monthly Basic Salary was Kshs. 19,602/= and the Court finds this as the applicable salary.
63. The Claimants also pleaded for overtime. However, they 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 they lay 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 Claimants did not prove that they worked overtime for the period that they were in the employment of the Respondent.
64. 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.
65. The Claimants also pleaded for underpayments. They did not however provide evidence to justify that their monthly earnings for the respective periods were below the then minimum wage bill. The prayer for underpayment thus fails.
66. The prayer for service pay also fails because the records produced in Court indicated that the Respondent remitted statutory deductions in favour of the Claimants.
67. On transport allowances claimed, this Court finds no basis for the claim which is declined as they were not provided in the contract of service.
68. To this extent the court is satisfied that the Respondent did not follow the law in termination the Claimant’s employment.
69. In conclusion the Claimants’ suits succeed as follows:
(i) CW1 be and is hereby awarded as follows
(a) Salary in lieu of notice of Kshs. 16,782/=.
(b) With regard to claim for unfair termination for reasons stated in paragraphs 52 to 62 of this judgment, the court hereby award the claimant 8 months salary of Kshs.134,256/=.
(c) Accrued leave for 3 years of Kshs. 50,346/=.
TOTAL KSHS. 201,384/=
(ii) CW2 be and is hereby awarded as follows
(d) Salary in lieu of notice of Kshs. 19,602/=.
(e) Claim for compensation for unfair termination of employment equivalent to 8 months salary of Kshs. 156,816.
(f) Accrued leave for 3 years of Kshs. 58,806/=.
TOTAL KSHS. 235,224/=
(g) The Respondent be and is hereby directed to issue respective Certificate of Service to the Claimants.
(h) The Claimants are awarded costs of this Claim plus interest at court rates from date of Judgement until payment in full.
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