Josphat Mutua Ngovi v Protective Custody Limited [2021] KEELRC 1036 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT NAIROBI

CAUSE NUMBER 1680 OF 2015

BETWEEN

JOSPHAT MUTUA NGOVI ……………………………………………. CLAIMANT

VERSUS

PROTECTIVE CUSTODY LIMITED……………….....………… RESPONDENT

Rika J

Court Assistant: Emmanuel Kiprono

_____________________________

Namada & Company Advocates for the Claimant

Njuguna & Partners, Advocates for the Respondent

__________________________________________

JUDGMENT

1. The Claimant filed his Statement of Claim, on 22nd August 2015. He avers, he was employed by the Respondent as a Security Guard, on 10th March 2009. He was paid a monthly salary of Kshs. 7,000, which he avers, was below the statutory minimum wage for his industry.

2. He worked over public holidays; he never went on annual leave; and was not paid house allowance. He was not compensated for work done on public holidays, and was denied pay in lieu of annual leave.

3. On 1st January 2015, he was informed by the Respondent, that there was no more work, but would be recalled when work was available. He was not recalled, prompting him to seek the intervention of the Ministry of Labour and the Commission for Administrative Justice. He was not assisted appropriately by these agencies, and approached the Court on 22nd August 2015.

4. He avers that his contract was terminated on account of redundancy; that he was not issued notice of redundancy; that he was not paid severance; and due regard to seniority in time, skill, ability and reliability was not made.

5. He prays for Judgment against the Respondent in the following terms: -

a. 1-month salary in lieu of notice at Kshs. 9,780.

b. Underpayment of salary for the year 2012 at Kshs. 18,975.

c. Underpayment of salary for the year 2013 to 1st January 2015 at Kshs. 66,742.

d. Severance/service pay for the period 10th March 2009 to 1st January 2015 at 15 days’ salary over a period of 6 years at Kshs. 29,342

e. Annual leave over the period of 6 years at Kshs. 58,685.

f. Public holidays worked at Kshs. 43, 036,

g. House allowance for 6 years at Kshs. 105,634.

h. 12 months’ salary in compensation for unfair termination at Kshs. 117,371.

Total...........Kshs. 449,551.

i. Declaration that termination was unlawful and unfair.

j. Declaration that the Claimant is entitled to terminal benefits and compensatory damages.

k. Costs and interest.

6. The Respondent filed its Statement of Response on 19th October 2015. It is accepted that the Claimant was employed by the Respondent as a Security Guard. He utilized all his annual leave days. The Respondent had a service agreement with the Kenya Power and Lighting Company for guard duties, at the Company’s houses, Umoja 99. The Claimant was assigned duty there. The contract lapsed in December 2014. The Guards were recalled for deployment elsewhere in January 2015. The Claimant was deployed at Telkom Kenya Cable Patrol Unit. He declined deployment, surrendered his tools of trade and uniform. He then reported to the Labour Office and the Commission for Administrative Justice, that his contract was unfairly and unlawfully terminated. The Labour Office listened to the Parties, and advised the Claimant to report to the Respondent for reassignment. He did not, but instead filed this Claim. The Respondent denies that it owes the Claimant any terminal dues and compensatory damages. The Court is urged to dismiss the Claim with costs.

7. The Claimant gave evidence on 24th October 2014 and over 7 years later, on 25th February 2021 when he closed his case. The Respondent’s Operations Assistant Isaac Rogers, gave evidence on 17th June 2021 when hearing closed.

8. The Claimant adopted his Witness Statement on record as his evidence. The Witness Statement replicates the contents of the Statement of Claim as summarized above. He emphasized that he was denied certain benefits and his contract was terminated unfairly and unlawfully. There was no hearing and no reason to justify termination. He has not secured alternative employment.

9. Cross-examined, the Claimant told the Court that he was employed from 10th March 2009 to 1st January 2015, a period of 5 years and 9 months. He had worked elsewhere before and was conversant with his role. He was informed that his initial contract was over. He was offered Telkom security nightshift.  He surrendered his uniform and left. He reported to the Labour Office, who advised that his contract had not been terminated. Redirected he told the Court that he did not leave employment of his own volition. His contract was terminated. He was not issued a letter of reassignment.

10. Isaac Rogers adopted his Witness Statement and Documents filed by the Respondent, in his evidence. On cross-examination he stated that the Claimant was paid hourly. It depended on the hours worked. In the industry there are different hours of work. Some Guards work 6 hours a day. The Claimant was paid Kshs. 443 per day. The Respondent had a service agreement with Kenya Power and Lighting Company. The Respondent had not issued written contracts to the recalled Employees, for its assignment with Kenya Telkom. The Claimant deserted, on being assigned work at Telkom. He surrendered his uniform. He reported to the Labour Office, who upon listening to the Parties, advised that the Claimant reports to the Respondent for duty reassignment. The Claimant did not return. Redirected, Rogers told the Court that Respondent’s contracts with the Guards, did not end with the Kenya Power and Lighting Company service agreement. The Guards were offered alternative work, a fact confirmed by the Labour Office. A Guard working for 12 hours, earned Kshs. 443 daily. The Claimant earned the same amount for 6 hours of work daily.

The Court Finds: -

11. It is not disputed that the Claimant was employed by the Respondent, on 10th March 2009 as a Security Guard.

12. He left on 1st January 2015. The circumstances of his departure are contested. He states that he was told by the Respondent that there was no more work, but would be recalled once such work became available. The Respondent denies this. Its position is that it had a service agreement with Kenya Power & Lighting Company for guard duties, at the Company’s Umoja 99 houses. The service agreement expired at the end of December 2014. In January 2015, the Guards were recalled and offered fresh assignments at Telkom Kenya Cable Patrol Unit. The Claimant declined reassignment and returned his uniform.

13. The narrative told by the Claimant is untrue. The Respondent’s narrative is true. The Claimant reported the dispute to the Labour Office. It was confirmed by the Labour Office that indeed, the Claimant had been offered fresh reassignment, after the expiry of the Kenya Power & Lighting Company service agreement. It was confirmed that the Claimant declined reassignment. The Labour Office advised the Claimant to report back to work, which the Claimant did not.

14. This position was confirmed by the Claimant in his own evidence while on cross-examination. He stated: -

‘’ I was advised my initial contract was over. I was offered Telkom security nightshift. I surrendered my uniform and left. I reported to Labour Office. Labour Office followed [up] and advised I had not been terminated.’’

15. There was no redundancy and no termination of any form, by the Respondent, of the Claimant’s contract of employment. He was offered alternative work in continuity, after the service agreement at Kenya Power & Lighting Company expired. He declined reassignment and walked out. His Claim that termination was unfair and unlawful has no foundation.

16. The prayers for declaration that termination was unfair and unlawful; notice pay; and compensation for unfair termination are declined.

17. There is no evidence other than Rogers’ word, to prove that the Claimant was paid Kshs. 443 daily. There are bank statements filed by the Claimant, supporting that he was paid a monthly salary. He gave evidence that the amount paid was Kshs. 7,000. The Respondent offered another explanation for payment of this amount, which on the face of it, appears out of tune with the minimum wage payable in the industry: it was explained that the amount was net. There was no attempt made by the Respondent, to show what allowances were paid to the Claimant, and what his gross monthly salary was.

18. The prayers for underpayment of salary are persuasive, viewed against the Wage Amendment Orders, applicable over the years in question.

19. The Claimant is granted underpayment of salary for the year 2012 at [Kshs. 8,759 – Kshs. 7,000] x 12 months = Kshs. 18,957 and for the period 2013 to 1st January 2013 [Kshs. 9,780 – 7,000] x 12 = Kshs. 66,742. The total underpayment of salary is granted at Kshs. 85,699.

20. There was no redundancy situation as concluded above. However, the Claimant prays for severance and/ or service pay.Regulation 17 [1] of the Regulation of Wages [Protective Security Services] Order,1998,allows Security Guards gratuity, after 5 years’ service with an Employer, at 18 days’ salary for every completed year of service, based on the applicable salary at the time of termination. The Claimant had worked for over 5 years, and merits this form of service pay, at 18 days’ salary over a period of 5 completed years of service.  This item is allowed at Kshs. 9,780 divide by 26 working days x 18 days x 5 years = Kshs. 33,750.

21. The Respondent told the Court that the Claimant utilized his annual leave days. The Claimant stated he did not, and was paid nothing in lieu of leave. There are no records on annual leave exhibited by the Respondent. The Wage Order above, Regulation 10 [1], allows Security Guards 26 days of annual leave with full pay, after each period of 12 months’ consecutive service. The Court shall allow the prayer, adopting the daily rate of Kshs. 376 x 26 days x 5 years = Kshs. 48,880.

22. The Claimant was not clear about holiday pay. He did not offer sufficient evidence in support of this prayer. He did not complain about holiday pay before the Labour Office. The prayer is declined.

23. The Respondent did not discount the prayer for house allowance. The Respondent, while testifying that Kshs. 7,000 paid monthly to the Claimant comprised net pay, did not clarify what was the gross pay, and what allowances were paid to the Claimant. It certainly was not made clear whether any such allowances included house allowance. Regulation 5 of the Wage Order, grants Security Guards, where no free housing is availed, in addition to basic salary, housing allowance of Kshs. 1,000 per month, or 15% of the basic salary, whichever is higher. The Claimant worked for 69 months, commencing 10th March 2009, ending 1st January 2015. The prayer for house allowance is allowed at 15% of Kshs. 9,780 x 69 months = Kshs. 101,223.

24. No order on the costs and interest.

IN SUM, IT IS ORDERED: -

a. The Respondent shall pay to the Claimant: underpayment of salary at Kshs. 85,699; service at Kshs. 33,750; annual leave at Kshs. 48,880; and house allowance at Kshs. 101,223 – total Kshs. 269,552.

b. No order on the costs and interest.

DATED, SIGNED AND RELEASED ELECTRONICALLY TO THE PARTIES, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, AT NAIROBI, THIS 10TH DAY OF SEPTEMBER 2021

JAMES RIKA

JUDGE