The appeal arises from the judgment delivered on 29 February 2024 in Mombasa CMELRC No.E345 of 2021. The appellant seeks that the judgment awarding damages to the respondent be dismissed and replaced with an award of the counterclaim. Alternatively, the appellant is seeking that the trial court's judgment be varied, reviewed and replaced with orders allowing the counterclaim with costs.
The impugned judgment arose from a claim filed by the respondent because he was employed by the appellant as a turn-man in 2017 at a Ksh wage.16, 000 per month. He worked until 22 March 2021, when he alleged that his employment was terminated unfairly. He claimed that he resigned and was not issued a Certificate of Service. He claimed the following terminal dues;
- Notice pay Ksh.16,000;
- Salary for March 2021 Ksh.16,000;
- Leave pay Ksh.31,015.32;
- Public holidays Ksh.24,369.18;
- Gratuity pay Ksh.44,309.60;
- 12 months compensation Ksh.192,000;
- Certificate of service;
- Costs of the suit.
In response, the appellant filed a response and counterclaim. The appellant admitted to employing the respondent at a wage of Ksh.16, 000 per month but as a tyre attendant. He had a habit of deserting duty and being absent from work without leave and was severely reprimanded. On 5 March 2021, the respondent reported to work and noted he was unwell. He sought medical treatment and later asked for time off without a worksheet from the doctor. On 10 March 2021, the respondent returned to work and applied for 21 leave days, which was granted. He reported back on 6 April 2021 but deserted duty afterwards. The respondent abandoned his work without notice or justification. The respondent admitted that he resigned from his employment.
Upon absconding duty, the respondent acted unilaterally without notice to the appellant, which amounted to gross misconduct. The claim for notice pay and compensation does not arise. The respondent took all his pending leave days before desertion of duty. Service pay is not due since the appellant paid statutory dues, and upon his resignation, the appellant cannot be said to have unfairly terminated employment.
In the counterclaim, the appellant’s case was that the respondent resigned from his employment without notice of justification. During desertion, the appellant advanced the respondent Ksh.10, 840 to enable him to seek out his medical-related expenses and determine which amount would be deducted from his wages. On 6 April 2021, the respondent returned to work after his annual leave but later deserted duty. The appellant counterclaimed the following;
- A declaration that the respondent deserted duty for no good cause;
- Notice pay ksh.16,000;
- Refund of salary advance Ksh.10,840;
- Costs of the suit.
The trial court heard the parties and delivered judgment on 29 February 2024 and held that there was unfair termination of employment and the respondent was awarded as pleaded in his Memorandum of Claim with costs and interests from the date of filing suit.
Aggrieved, the appellant filed the appeal on eleven (11) grounds that the trial court erred in law and fact in failing to address common principles under the Employment Act and exercising its discretion correctly. The trial court ignored the principles of law under Section 35(5) (c) of the Employment Act in awarding the respondent service pay, whereas the appellant had made statutory remittances. The trial court failed to consider the evidence that the respondent had the habit of deserting duty without good cause and should have dismissed the claims made and allowed the counterclaim.
Both parties attended and agreed to address the appeal through written submissions.
The appellant submitted that the trial court failed to address the matter in its entirety, especially the counterclaim. The evidence on record was not addressed, particularly the fact that the respondent deserted duty without good cause. This was a critical part of the dispute upon the respondent's admission that he resigned from his employment without notice and without paying the salary advances.
Notice pay is not justified upon the resignation. The gratuity award had no legal basis as held in Banmburi Cement Limited v Farid Aboud Mohammed [2016] eKLR.
The records filed by the appellant were not analysed and considered in the judgment. The data filed demonstrated that the respondent's work attendance was erratic. He remained absent from duty for days without justification. A warning letter was issued, but the respondent failed to take heed. He wrote an apology letter for his conduct as proof of admission that he had committed gross misconduct. Had these facts been well addressed, the claim should have been dismissed with costs.
The appellant submitted that the trial court's compensation awards were not justified. In Alphonse Machanga Mwachanya v Operational 680 Ltd [2013] eKLR, the court held that where there is no proof of unfair termination of employment, compensation is not due. This is reiterated in Nicholas Kipkemoi Korir v Hatari Security Guards Limited [2016] eKLR.
The respondent contradicted himself in his evidence and failed to demonstrate that his employment had been unfairly terminated. Such contradictions went into the heart of the matter, and had these facts been well addressed, the claim should have been dismissed with costs. The counterclaim was not analyzed and should be allowed with costs.
The respondent submitted that his employment was terminated by the appellant verbally when Raju directed him to leave the premises. Present was another witness called Husna. Upon sustaining an injury, the appellant paid for the treatment was given sick off and reported back on 22 March 2021. The trial court established there was unfair termination of employment and the judgment should be confirmed.
The respondent submitted that no evidence supports the appeal that he absconded duty. He was on sick leave and resumed work on 22 March 2021. Under Section 41 of the Employment Act, there was no procedural fairness in terminating employment, as held in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR. The award of compensation was justified for 12 months.
The respondent had not taken his annual leave under Section 28 of the Employment Act. In Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR the court held that the remedies under Section 49 of the Employment Act allow the court to make compensation and payment of terminal dues including leave pay upon unfair termination of employment.
Having worked on public holidays without compensation, the claim made is justified. Gratuity is a gratuitous award that should be awarded at the end of employment as held in Bamburi Cement Ltd v Farid Abuod Mohammed [2016] eKLR.
The respondent submitted that the appeal should be dismissed with costs.
Determination
This is a first appeal. The court must review the entire record, re-assess and make its conclusions. However, take into account that the trial court had the opportunity to hear the witnesses in court.
In the trial court's judgment, there are general awards as pleaded. In employment and labour relations, unlike commercial disputes, section 18(4) and (5) of the Employment Act requires that despite the reasons leading to termination of employment, each claim must be investigated, analyzed, and addressed on its merits. A general award, as pleaded, should not suffice.
In this case, the respondent, as the employee, claimed that he worked for the appellant until 22 March 2021, when his employment was terminated without notice or reasons. He also claimed under paragraph (8) of the Memorandum of Claim that;
The respondent did not issue the claimant a Certificate of Service upon resignation.
Parties are bound by their pleadings.
In response, the appellant filed various work records touching on the respondent's conduct as an employee. These included;
- Worksheets and clocking machine;
- Work attendance records;
- Internal memo to the respondent dated 4 May 2019;
- Warning letter dated 6 May 2019;
- Apology letter from the respondent dated 3 April 2018;
- Apology letter from the respondent dated 22 January 2019;
- Leave forms, dated 10 March 2021, for 21 days.
The appellant’s case was that the respondent resigned from his employment. Evidence shows that he took 21 days of leave from 10 March 2021. This record is not contested.
His case is that he was terminated from his employment on 22 March 2021 given the leave days taken and the fact that his resignation should not arise. The point of resignation ended employment without notice to the employer. He has not pleaded that the resignation was motivated by any working conditions to allow him to claim constructive dismissal.
The records filed speak to an employee who abandoned his employment after taking annual leave. The requirement to resume duty after 21 days from 10 March 2021 does not speak to a termination of employment on 22 March 2021. Upon tabulation of time under Section 28 of the Employment Act, duty should have resumed on 6 April 2021.
By this time, the respondent had taken it that his employment had been terminated on 22 March 2021. He pleaded that he had resigned and should be issued a Certificate of Service.
An employee who abandons work after lawful approval of his annual leave cannot justify a claim of unfair termination of employment. He should have issued notice to the employer of his resignation. A claim of notice pay and compensation should not arise.
Even if there was any unfairness, which is not the case here, based on the records filed by the appellant, the trial court should have applied the provisions of Section 45(5)(2) of the Employment Act. The warning letter, erratic reports to work, apologies over misconduct, all these records should have been accounted for. In the case of Kimongo v Shrink Pack Limited [2024] KECA 678 (KLR), the Court of Appeal held that while analyzing whether termination of employment was fair or unfair, section 45(5) of the Employment Act requires the court to look into the historical behaviour of the employee especially late reporting to work and absenteeism. The court held that;
… The respondent referred to the appellant’s e-mail of 5 October 2013, expressing remorse for her historical behaviour of late coming and absenteeism. The respondent maintained that the said apology was inconsistent with an employee who had been unlawfully terminated. On that basis, the trial court declined to hold that the appellant had been unlawfully dismissed and instead made a finding that the appellant had deserted her duties. The respondent was sanctioned for having not regularized the desertion by not issuing either a termination notice or a notice to show cause.
The work records come to bear.
The court finds the respondent abandoned his employment and opted to resign without notice, and his claims for compensation and notice pay were not justified. In the case of Naima Khamis v Oxford University Press (EA) Ltd [2017] KECA 480 (KLR), the court held that save for fair procedure being applied in termination of employment, the conduct of the employee leading to termination of employment must be taken into account. See Bamburi Cement Limited v William Kilonzi [2016] KECA 546 (KLR).
The above addressed the respondent's claim for his salary for March 2021. His case was that employment was terminated on 22 March 2021. There is no record filed that the wage due was paid. For the 22 days on the wage of Ksh.16, 000 per month, the respondent is entitled to Ksh. 11,734.
On the annual leave claim, the respondent had just taken 21 leave days before abandoning his employment. Under Section 28(4) of the Employment Act, his accrued leave days were spent. There is also a record of several other leave days taken over the period.
On the claim for work during public holidays, as submitted by the appellant, these are special days published by the Minister. Each must be particularised by a claimant to allow a respondent to address. These claims cannot form a general claim.
The claim for gratuity only accrues where there is a written contract of employment conferring the benefit, such as a private treaty or collective agreement for unionized employees. The respondent did not submit any document conferring him the right to payment of gratuity.
A Certificate of Service is due at the end of employment under Section 51 of the Employment Act.
In employment claims, the awarded costs are not a matter of course. They should be for stated reasons. The claim is largely unsuccessful. The trial court, having the discretion to award costs, should have applied the principles under Section 12(4) of the Employment and Labour Relations Court Act to justify the award of costs plus interests. This is not due in this case. The respondent's conduct does not justify his claim for costs.
On the counterclaim, section 19 of the Employment Act allows an employer to make lawful deductions from an employee's wages. Where the employee is advanced with monies deductible under his due wage, such is due at the end of employment. Such should be deducted before payment of terminal dues. In Javan Were Mbango v H. Young & Co. (EA) Ltd [2012] eKLR, the court held that;
In making payments to any employee, an employer must ensure that all the statutory deductions due are removed from the gross pay. The employer is, therefore, entitled to make a deduction of any amount authorized by any written law for the time being in force, collective agreement, wage determination, court order or arbitration award. This Court is guided by the provision of Section 19 of the Employment Act.
Employees who, out of their own free will, join employees at Sacco do so by their employment and authorize the employer to make deductions from their salaries to Sacco for their welfare and the collective good of all. An employee is, therefore, stopped from claiming that once their employment is terminated, they are owed all their savings without considering the collective agreement under their Sacco and/or cooperative society. Where an employee has enjoyed a loan facility from the collective kitty, he is equally obliged to make reasonable any dues, and his relationship with the collective is severed by virtue of the termination of his relationship with the principal.
A salary advance is deductible at the end of employment. In this case, the appellant is justified to claim the sum of Ksh. 10,840 advanced to the respondent during his employment.
Upon abandoning his employment, the claim for notice pay to the appellant is justified.
To this extent, the counterclaim is with merit and is hereby allowed with costs.
Accordingly, judgment in Mombasa CMELRC E345 of 2021 is hereby set aside, and the following orders are issued;
- The respondent abandoned his employment with the appellant;
- The respondent is entitled to his wages for March 2021 at ksh.11,734;
- The counterclaim is hereby found with merit and is allowed in the following terms;
- The appellant is entitled to notice pay at ksh.16,000;
- The appellant is entitled to a salary refund of Ksh.10,840;
- The appellant is entitled to the costs of this appeal;
And;
- The dues owed shall be paid less, whichever is higher.
Delivered in open court at Mombasa on this 31 day of January 2025.
M. MBARŨ
JUDGE