Ishmael Lukoye v Blue Amour Security Company [2020] KEELRC 1026 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 2409 OF 2016
ISHMAEL LUKOYE..................................................................CLAIMANT
v
BLUE AMOUR SECURITY COMPANY..........................RESPONDENT
JUDGMENT
1. According to an affidavit of service filed in Court on 16 October 2017, a supervisor called Wachira acknowledged service of Notice of Summons and Memorandum of Claim on 4 May 2016 on behalf of Blue Amour Security Company Ltd (Respondent).
2. Despite the service, the Respondent did not enter Appearance and/or file a Response, and the Court directed that the Cause proceeds to formal proof.
3. The Cause was heard on 10 March 2020.
4. Ishmael Lukoye (Claimant) testified under oath and also adopted the filed witness statement. The Claimant’s submissions were only filed on 27 May 2020 (should have been filed by 31 March 2020).
5. The Court has considered the pleadings, evidence and submissions.
Unfair termination of employment
6. For a termination of employment to pass the fairness test as envisaged by sections 35(1), 41, 43 and 45 of the Employment Act, 2007, there should be written notice of termination of employment, a disciplinary hearing and proof of the validity and fairness of the reasons leading to the decision to terminate.
7. The Claimant’s testimony that he was a security guard and that the Respondent’s Operations Manager verbally instructed him to remain at home after a robbery at a site he was guarding, and later advised him that he had been dismissed remained unrebutted.
8. With no evidence of written notice or a hearing as contemplated in law, or that there were valid and fair reasons for the termination of the Claimant’s employment, the Court finds that the Claimant has proved unfair termination of employment.
Compensation and salary in lieu of notice
9. The Claimant served the Respondent for about 4 years and in consideration of the length of service, the Court is of the view that the equivalent of 4 months’ gross salary as compensation would be appropriate.
10. The Court also allows the equivalent of 1-month salary in lieu of notice.
Breach of contract/statute
Underpayments
11. The Claimant contended that he was paid Kshs 7,000/- monthly, below the minimum prescribed and gazetted wage from 1 June 2012 to 1 April 2015. He computed the total underpayments as Kshs 146,855/-.
12. With no contrary evidence, the Court will find that the Respondent was in breach of contract/statute with respect to the prescribed minimum wage for security guards.
House allowance
13. Under section 31 of the Employment Act, 2007, the employer should provide the employee with housing and in lieu thereof, an allowance to cover rent.
14. The Claimant did not lay an evidential foundation for the claim of Kshs 37,800/- as house allowance. Relief is declined.
Overtime
15. On account of overtime, the Claimant sought Kshs 126,000/- for 3 years of employment. Again, no evidential foundation for this head of the claim was laid during oral testimony or in the filed witness statement and relief is declined.
Leave
16. Annual leave of at least 21 days is a contractual right of all employees. The amount of leave which can be carried forward is circumscribed by section 28(4) of the Employment Act, 2007.
17. Since the Claimant did not disclose whether he applied for leave and was denied, or that he carried forward the leave with the concurrence of the Respondent, relief of the Kshs 21,000/- is declined.
Service pay
18. In terms of section 35(5) & (6) of the Employment Act, 2007, service pay is an entitlement where there is no pension scheme in place or where the employee is a not contributor towards the National Social Security Fund.
19. The Claimant made no disclosure as to membership or non-membership of the NSSF or pension scheme, and relief is declined.
Conclusion and Orders
20. The Court finds and declares that the termination of the Claimant’s employment was unfair and that the Respondent was in breach of contract.
21. The Claimant is awarded
(a) Compensation Kshs 28,000/-
(b) Pay in lieu of notice Kshs 7000/-
(c) Underpayments Kshs 146,855/-
TOTAL Kshs 181,855/-
22. Claimant to have costs on half-scale.
Delivered through Microsoft teams/email, dated and signed in Nairobi on this 29th day of May 2020.
Radido Stephen
Judge
Appearances
For Claimant Mr. Upendo instructed by Namada & Co. Advocates
Respondent did not participate
Court Assistant Judy Maina