Felister Ayoti Ambale v Bharat Raval [2021] KEELRC 632 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE N0.  26 OF 2016

FELISTER AYOTI AMBALE...................................................................CLAIMANT

VERSUS

BHARAT RAVAL...................................................................................RESPONDENT

JUDGMENT

1. The claimant filed the suit on 13/1/2016 seeking for compensation forunlawful and unfair termination of employment and payment of terminal benefits including

i. One month salary in lieu of notice  - Kshs 7,915. 90.

ii. Service pay for 7 years – Kshs 27, 705. 65.

iii. Unpaid house allowance for 7 years – Kshs 99,740. 76.

iv. Underpayments – kshs 77,053. 00.

v. Costs and interest.

2. The claimant (C.W.1) testified that she was employed by therespondent in January, 2006 as a house help at a monthly salary of Kshs 4,000 per month but was not issued with a letter of appointment.  That she served diligently until 1st January, 2014 when the respondent wrongfully and unfairly terminated her services and failed to pay her terminal benefits.

3. That her demand letters were not heeded hence the suit.

4. Under cross-examination the C.W.1 testified that her salary wasincreased from Kshs 4,000 to Kshs 5,000 after working for five months.  That in the year 2008 the salary was increased to Kshs 6,000 and thereafter she was paid Kshs 8,000 until the date of termination.

5. C.W.1 testified that she worked from 7 am in the morning to 6 am inthe evening and at times she worked up to 3 p.m. in the night when they were at Nairobi.  That she lived at Thika County and the respondent at times took her home when it was late.  That the wife of the respondent was very rude to her and called her stupid often.  C.W.1 testified that she did not report these incidents to the police.  She was patient.  C.W.1 stated that she only went on leave once in the year 2013.  That she worked even during public holidays and commuted home daily.

6. C.W.1 testified that she was given a few days leave and was neverrecalled back.  The respondent told C.W.1 that his wife no longer wanted C.W.1 to work for them.

7.  C.W.1 stated that she worked 6 days a week.  That she was paid in cashand did not sign anywhere and no statutory payments were made on her behalf by the respondent.  The claimant prays to be awarded as prayed.

8.  R.W.1, Bharat Raval, the respondent testified that he owned a schoolcalled Equator High School.  R.W.1 stated that the claimant worked for him and she was a good maid.  That he did not give her a letter of appointment and he paid her Kshs 6,000 per month all inclusive.  That he gave C.W.1 annual leave several times a year amounting to 21 days a year.

9.  That in the year 2014, C.W.1 went on leave and did not come back.

That R.W.1 wrote a letter to the Ministry of Labour Thika, on the matter and  C.W.1 came back after 14 days and said she wanted to resume work but he did not take her back.

10. Under cross-examination R.W.1 testified that C.W.1 did not work onSaturdays and public holidays.

11. That C.W.1 went on leave in April, August, and December.  R.W.1 hadno record to show that C.W.1 took leave at all.  That everything was done verbally.  R.W.1 testified that the claimant went on leave and was to return on 7/1/2014 but did not return.  R.W.1 wrote to the Ministry of Labour in February, 2014.    R.W.1 said he summarily dismissed the claimant for failing to return to work from leave.  R.W.1 said that C.W.1 was a good employee and she did not tell him that his wife was rude to her.

12.  R.W.1 testified that he did not pay National Social Security Fund andNational Hospital Insurance Fund for the claimant and that Kshs 6,000 was a consolidated salary, all inclusive.  R.W.1 prays that the suit be dismissed with costs.

Determination

13. The issues for determination are:-

i. Whether the claimant absconded work or was wrongfully dismissed from employment.

ii. Whether the claimant is entitled to the reliefs sought.

14. There is no dispute that the claimant was employed by the respondentsometimes in January, 2006 and worked continuously until the 7th January, 2014.  The claimant testified that at the time of termination she earned Kshs 8,000 a month whereas the respondent testified that he paid her Kshs 6,000 per month all inclusive.  The respondent admitted that he never paid any statutory benefits on behalf of the claimant including National Social Security Fund (NSSF) and National Hospital Insurance Fund (NHIF).

16. The claimant testified that she was underpaid; she was not grantedleave except only in the year 2014 when she was granted leave and then told not to come back to work.  R.W.1 on the other hand stated that the claimant took 21 days leave every year but had no record at all to demonstrate that R.W.1 also had no record of the contract of employment.

17. The claimant testified that she was treated badly by the wife of therespondent.  That she was wrongfully and unfairly dismissed from work without being paid terminal benefits including one month salary in lieu of notice; service pay for the 7 years served because the respondent did not have any pension for her; house allowance at the rate of 15% of the basic pay and underpayments for the period she earned less salary than the minimum statutory wage.

17. The Court finds that the respondent had an obligation to keepemployment records as mandated under Section 74(1) of the Employment Act, 2007.

18. The Court is bound to make an adverse presumption against anemployer who does not produce employment records to clarify matters in dispute.

19.  In this respect, the Court finds that the claimant has satisfied the Courtthat she was not granted annual leave except in the period December,  2013 and was to return to work in January, 2014 but was asked not to return to work.

20. The Court finds that the respondent summarily dismissed the claimant without notice; notice to show cause and the claimant was not given a hearing.  The Court accepts the credible evidence by the claimant that the wife of the respondent treated her badly and eventually she had caused the respondent to tell her not to return to work upon her taking leave.

21. The Court finds that the termination of the employment of the Claimant was unlawful and unfair and in violation of Sections 36, 41, 43 and 45 of the Employment Act.

22. The claimant is entitled to compensation in terms of Section 49(1) (c) and (4) of the Employment Act, 2007.  In this regard the claimant had served the respondent diligently for a period of 7 years.  She had no disciplinary record and so did not contribute to the termination.  She was not given notice and was not paid any terminal benefits.

23.  The Court finds that the claimant was underpaid and no statutory benefits were paid and so she had no social security or medical cover at all for the 7 years she served the respondent.  These are aggravating circumstances.

24. The Court relies on the case of Alphonse Maghaga Mwachanya –vs- Operation 680 Limitedin support of the finding that the termination of the employment of the claimant was both procedurally and substantially unfair and the decision by Rika, J. in James Ashiambi Nanay –vs- Menengai Oil Refineries Limited [2016] eKLR where the Court held, that an employer who relies on desertion as a ground for termination of employment must demonstrate attempts made to reach out to the employee to establish her whereabouts.

25. In the present case, the respondent summarily dismissed the claimant upon her return to work after Christmas leave without giving her notice to show cause and or a hearing.

26. Considering all the circumstances of the case, the Court awards the claimant the equivalent of seven (7) months’ salary in compensation for the unlawful and unfair termination of employment in the sum of Kshs (7,915,90 x 7) = 55,411. 30.

Terminal benefits.

27. The claimant has proved on a balance of probabilities that the respondent did not give her notice of termination and was wrongly summarily dismissed.  The Court awards the claimant one month salary in lieu of notice in the sum of Kshs 7, 915. 90.

28. The Court also finds that the claimant is entitled to service pay under Section 35(5) of the Employment Act, in that the respondent did not pay any National Social Security Fund on her behalf.  The Court awards the claimant 27, 705. 65 as claimed.

29. The Court also finds that the claimant was not paid house allowance and was not housed by the respondent and awards her Ksh 95,740. 76 as prayed.

30. The claimant did not adduce sufficient evidence to demonstrate that she was underpaid and by how much.  This claim is dismissed for want of proof.

31.  In the final analysis, judgment is entered in favour of the claimant against the respondent as follows:

a.  Kshs 55,411. 30 being the equivalent of 7 months’ salary incompensation.

b.  Kshs 7,915. 90 in lieu of one month notice.

c. Kshs 27, 705. 65 being service pay for the period served.

d. Kshs 99, 740. 76 being unpaid house allowance at 15% of theBasic salary.

e.  Total award Kshs 165, 773. 61.

f.  Interest at Court rates from date of judgment till payment infull.

g. Costs of the suit.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 28TH DAY OF OCTOBER, 2021

MATHEWS N. NDUMA

JUDGE

Appearance

Mudeshi Muhanda & Co. Advocates for the claimant

Nng’ang’a Ngigi & Co. Advocates for the respondent

Ekale – Court clerk