Felister Nduku Nzaku v Joyce Wairimu Gitau [2018] KEELRC 1322 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE. NO. 1126 OF 2016

FELISTER NDUKU NZAKU.....................................LAIMANT

VERSUS

JOYCE WAIRIMU GITAU.................................RESPONDENT

JUDGMENT

Introduction

1. The claimant brought this suit on 10. 6.2016 seeking terminal dues plus compensation for unfair termination of her services by the respondent on 21. 7.2015. It is her case that she was terminated without prior notice as required by the law and without being paid her terminal dues. It is further her case that during her employment, she was underpaid in salary and denied her annual leave.

2. The respondent never filed defence and the suit was heard exparte by Mbaru J and entered Judgment in her favour on 15. 12. 2016. On14. 6.2017 the respondent applied for setting aside of the judgment andsought leave to defend the suit. After hearing the parties, the Court granted the application on 12. 7.2017. However, the respondent never filed any defence, and the suit proceeded again by formal proof on 4. 6.2018.

Claimant’s Case

3. The Claimant testified as Cw1 and called two other witnesses. Cw1 told the Court that she was employed by the respondent in January 1999 as a House help and worked well until 21. 7.2015 at 10 p.m. when the respondent told her to go away and escorted her to Riruta Police Station to part from there. They were accompanied to the police station byJoseph Mutua and the respondent’s sister called Serah Waithera. Cw1 told the court that the reason for terminating her services was that the children he was taking care of were now grown ups and her services were no longer required. On arrival at the police station, she told the police that she had not been paid her salary and the police told them to go back because it was late and that respondent was directed to pay the salary due. Mr. Joseph Mutua was also told by the police to ensure that the salary was paid.

4.  Cw1 further testified that on arrival at the house, the respondent locked her out and failed to pay her salary. Cw1 then went to Karen to the lady who brought her to work for the respondent. After 3 days, Mr. Joseph Mutua called to collect her belongings from the respondents house but she was not paid her salary. She therefore prayed for compensation because the termination was without prior notice and that no valid reason was cited.

5. Cw1 further stated that during her employment, she never went for any leave, she was not registered for NSSF contributions and her salary was underpaid from the required Kshs.10,000 per month down to Kshs.4,000 per month.

6. Mr. Joseph Mutua testified as Cw2. He stated that Cw1 was employed by the respondent and in 2015, the respondent called him to accompany her and the claimant to Riruta Police Station. He further stated that on arrival at the station, the respondent reported that Cw1 had threatened her for money owing. She promised to pay by instalments plus the outstanding salary. He further stated that the parties agreed that the claimant could spend the night at the respondent’s house and leave the following day. He also stated that the respondent gave him Kshs.1,500for the claimant to rent house elsewhere while awaiting for money.

Thereafter no more money was paid and the claimant brought this suit.

7. Ms Mary Nthenya Muendo testified as Cw3. She started that in 1999, she brought the claimant to work for the respondent as a househelp after the latter’s request. In 2015, the claimant called her to say that the respondent had chased her away without any pay.

Analysis and Determination

8. There is no dispute that the claimant was employed by the respondent as a househelp from January 1999 to 21st July 2015 when she was terminated. The issues for determination are:

(a) Whether the termination was unfair

(b) Whether the reliefs sought should be granted

Unfair termination

9. The evidence by the claimant that she was terminated after her services became superfluous, has not been contested. In addition, the evidence that the termination was done without prior notice has also not been contested. I therefore find and hold that the respondent has not discharged her burden of proving substantive and procedural fairness as required by section 45 of the Employment Act.

10. Under section 45 of the Act, termination of employment contract is unfair if the employer fails to prove that it was grounded on valid and fair reason and that it was done after following a fair procedure. In this case, the reason cited was redundancy after the children the claimant was caring for grew up. The claimant has not denied the said reason but she is challenging the procedure followed because she was not served with prior notice and paid her dues.

11. Section 40 of the Act bars employer from terminating services of his employee on account of redundancy before complying with the mandatory procedure set out thereunder first the employer must serve the employee or union and the area Labour Officer with at least one month notice in writing. Second, and where necessary, a fair selection of the employees to be laid off is conducted. Finally, the employer must pay salary in lieu of notice, accrued leave and severance pay to the employee selected for the layoff.

12. The foregoing mandatory procedure was never followed because no prior notice was served on the claimant and non of the benefits set out by section 40 of the Act were paid to her. Consequently, I hold that thetermination of the claimant’s services was unfairly done in breach of section 40 and 45 of the Act.

Reliefs

13. Under section 49 of the Act, I award the claimant one month salary in lieu of notice plus 12 months salary as compensation for the unfair termination. The claimant prayed for Kshs.4,000 and Kshs.48,000 respectively and I award the same because the Court cannot amend a party’s pleadings during judgment. In awarding the foregoing compensation, I have considered the long service rendered for 16 years and the fact that the claimant never contributed to the termination through misconduct.

14. The claimant is further awarded Kshs.6,284 being salary for the days worked in July 2015 as prayed. The Regulation of Wages (General) Order 2015 provided for Kshs.10,954. 70 as the minimum wage for a Househelp in Nairobi City. Having worked for 21 days in July, her salary was much higher than the Kshs.6,284 prayed by the claimant.

15. In addition, the claimant is granted Kshs.44,000 as prayed for accrued leave for 16 years. Once again the sum prayed for is much less than heractual entitlement had she based the claim on the minimum salary set out by the 2015 General Wage Order.

16. Finally the claim for salary underpayment in arrears is granted as prayed being Kshs.294,160. 80.

Conclusion and Disposition

17.  For the reasons that the claimant was unfairly laid off, I enter judgment for her in the sum of Kshs.396,444. 80 plus costs and interest at the Court rates until payment in full. The award is subject to statutory deductions.

Dated, Signed and Delivered in Open Court at Nairobi this 31stday of July, 2018

ONESMUS N. MAKAU

JUDGE