Kaitano Musebe Anda v Poly Pipes Limited [2017] KEELRC 1873 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 513 OF 2014

KAITANO MUSEBE ANDA                                     CLAIMANT

v

POLY PIPES LIMITED                                      RESPONDENT

JUDGMENT

1. The Claimant contended in a Memorandum of Claim filed in Court on 14 October 2014 that the Respondent unlawfully terminated his employment on 1 June 2014. Apart from compensation for unfair termination of employment, the Claimant seeks pay in lieu of notice, service gratuity, overtime pay and underpayments.

2. The Court will examine whether the Claimant’s employment was terminated unlawfully and appropriate remedies if any, including entitlements accruing from the employment relationship.

Whether termination unfair

3. The Claimant contended that he was not given notice of termination of employment or a letter of termination.

4. The Respondent on the other hand contended that the Claimant was on fixed term contracts of 6 months and that it opted not to renew the last contract which expired on 30 June 2014 (contract is dated 1 January 2014).

5. The Claimant disowned signing or receiving the contract.

6. The Respondent produced three 6 months contracts issued to the Claimant. The contracts dated 2 January 2009 and 1 July 2009 have the Claimant’s signature but the last contract dated 1 January 2014 is missing page 2 where the Claimant’s signature should have been.

7. The missing page was not explained and therefore the Court finds it more probable that the said contract was not signed or accepted by the Claimant.

8. In the circumstances, the Claimant was on a month on month contract because he was paid by the month, and notice of termination in terms of section 35 of the Employment Act, 2007 was required to bring the contract to an end.

9. The contract in effect did not expire by effluxion of time, but was unfairly brought to an end by the Respondent.

Service gratuity

10. In so far as the Claimant was a contributing member to the National Social Security Fund, he is not entitled to service pay in terms of section 35(5) & (6) of the Employment Act, 2007.

11. If the service gratuity was sought on account of contractual as opposed to statutory foundation, the contractual basis was not demonstrated.

Overtime

12. In the course of hearing, the Respondent conceded that the Claimant worked overtime but because the computation was not agreed, the Court gave the parties’ time to reconcile the amount and file with the submissions. The Respondent computed the unpaid overtime as Kshs 213,650/-.

Underpayments

13. The Claimant did not show any evidential basis for underpayments in respect of leave days.

14. A sample of the pay slip produced in Court indicate that the Claimant was getting pro rata leave pay after every 6 months and the Court accepts the Respondent’s case that all untaken leave was commuted and paid for.

Compensation

15. The Claimant asserted he was employed in 2001, while the Respondent maintained he was employed in 2009. With the material placed before Court, it is not possible to determine when the employment relationship with the Respondent commenced as opposed to any service under a company associated or related to the Respondent (Court will not admit or consider the pay slips sneaked in with the written submission).

16. The Court will therefore adopt 2009 as date of employment, which means the Claimant served the Respondent for about 5 years.

17. Considering the length of service, the Court is of the view that the equivalent of 6 months gross wages at time of separation would be appropriate.

Conclusion and Orders

18. The Court finds and holds that the Claimant’s employment did not expire by effluxion of time but he was unfairly terminated and awards him and orders the Respondent to pay him

(a) 1 month pay in lieu of notice   Kshs 10,116/-

(b)  Overtime pay                             Kshs 213,650/-

(c) Compensation                           Kshs 69,798/-

TOTAL                                                Kshs 293,564/-

19. Claimant to have costs.

Delivered, dated and signed in Nakuru on this 20th day of January 2017.

Radido Stephen

Judge

Appearances

For Claimant           Mr. Bichanga instructed by Chepkwony & Co. Advocates

For Respondent     Mr. Ombui instructed by E.M. Juma & Ombui, Advocates

Court Assistant       Nixon/Daisy