Geradina Khayele Wendo v Board Of Governors Sigalagala Technical Training Institute [2016] KEELRC 1439 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KISUMU

CAUSE NO 231 OF 2014

(Before Hon. Lady Justice Maureen Onyango)

GERADINA KHAYELE WENDO.............................................................CLAIMANT

VRS

THE BOARD OF GOVERNORS SIGALAGALA TECHNICAL TRAINING INSTITUTE.................................RESPONDENT

JUDGMENT

The Claimant GERADINA KHAYELE WENDO  the Claimant  was employed by the Respondent Sigalagala Technical Training Institute as a kitchen  hand by letter dated 19th November 2001.  She worked until 28th October 2013 when she received a notice of retirement  informing her that she will be proceeding on terminal leave on 19th November 2013.  The letter stated that she had attained mandatory  retirement age of 55 years.  The letter further advised her that her gratuity dues would be paid in March 2014.

The Claimant received another letter from  the Respondent dated 31st December 2013 referring her to the Board of Governors Scheme of Service  for  Board of Governors employees (Chapter 11 page 53) and  reminded her that she would retire on 28th January 2014.

The Claimant was dissatisfied with the  decision to retire her at the age of  55 years  and filed the present suit alleging that her retirement was premature as she was entitled to retire upon attainment of 60 years as provided by law.  She  further alleged that she was never granted annual leave for  the entire period she worked for the Respondent.  She prayed for the following Remedies:

(a)     Salary for 5 years she could have earned ...................... Shs. 715,140. 00

(b)     Leave not taken for 12 years worked  ............................Shs.    59,595. 00

(c)     Sufferance allowance for  12 years  worked ..................Shs.    71,514. 00

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TotalShs.     846,249. 00

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She further prayed for costs and interest.

The Respondent filed  a defence denying all the allegations in the claim.

The case was heard on 30th  September, 2015 when  the Claimant testified.  The Respondent called one witness EVANS  SANDE.

The issues for determination are whether the Claimant's retirement age was 55 or  60, whether she was prematurely retired and whether she is entitled to the prayers sought.

Determination

The Employment Act, or any other employment legislation for that matter, does not provide for retirement age.  Retirement age  is supposed to be provided for in terms and conditions of employment by  specific employers.

In the present case the Claimant  relies on a circular that extended retirement age for public  servants from 55 to 60 years.  The circular which was not   produced by either the Claimant or Respondent, but which I take judicial notice of, provides for retirement age for public servants.

The Claimant alleges that she was an employee of the Government  while  the  Respondent submitted that the Claimant's terms of employment provided for mandatory retirement  at 55 years. The Claimant's letter advising  her of retirement  referred to the Board of Governors Scheme of Service for Board of Governors Employees.

The Claimant's  letter of appointment is specific that she was employed on the terms and conditions of Employment of  the  Board of Governors.  Her letters giving notice of retirement refer to the same terms.  The Claimant did not prove that she became an employee of the Government or that terms   applicable  to Public  servants, including retirement age for public servants, applied to her.

I therefore find that she was  properly retired upon attaining retirement age provided for in her terms and conditions of service and that she is not a public servant, therefore the circular on retirement age of  public servants does not apply to her.

The Claimant prayed for leave for 12 years  that she  worked.  The Respondent's witness testified that the Claimant took leave and that there were leave  forms in her file but the same were not produced.

According to Section 10 and 75 of the Employment Act it is  the Responsibility of the Respondent to keep employment records and to produce such records. Section 10(7) of the Employment Act provides that where such records are not produced  the burden of disapproving an allegation by the employee shifts to the employer.

Having  failed to provide the records or to  controvert the Claimant's allegations that she never took leave both in the Respondents statement of Response to the claim and during the hearing, I find  that the Claimant is entitled to leave of 21 days for each of the 12 years worked.  Her salary according  to the payslip for December 2013 was Shs. 11,719. 00.  At  21 days per year she is entitled to 252 days working out at Shs. 98,438. 80 which  I award her.

The Claimant prayed for "sufferance" allowance which in the written  submissions counsel for the Claimant  corrected to mean severance pay. Severance pay is only payable where an employee has been declared redundant.  The Claimant was not declared redundant and is not entitled to severance pay.  The claim is therefore dismissed.

The Respondent admitted  that the claimant is  entitled  to Shs. 103,648. 00 being  her terminal gratuity pay.

I therefore enter judgement for the Claimant in the  total sum of Shs. 202,086. 80.  I also award her  50%  of her costs .  There will be no order for payment of   interest.

Judgement dated, signed and delivered this 2nd Day of February, 2016.

MAUREEN ONYANGO

JUDGE