Musili v Shah t/a Macintosh Collection and Gifts & Humpty Dumpty Gift Shop [2024] KEELRC 552 (KLR)

Musili v Shah t/a Macintosh Collection and Gifts & Humpty Dumpty Gift Shop (Cause 1981 of 2015) [2024] KEELRC 552 (KLR) (8 March 2024) (Judgment)

Neutral citation: [2024] KEELRC 552 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1981 of 2015

SC Rutto, J

March 8, 2024

Between

Gideon Munyoki Musili

Claimant

and

vanita R Shah t/a Macintosh Collection and Gifts & Humpty Dumpty Gift Shop

Respondent

Judgment

1. The Claimant brought the instant suit instant vide a Statement of Claim which was amended on 28th January 2020. It is the Claimant’s case that he was employed by the Respondent on or about 11th October 1991 as a chef, with his main duty being to prepare cakes for the clientele at Macintosh Collections & Humpty Dumpty Gift Shop in consideration for a gross monthly salary of Kshs 1,500/=. He avers that he served the Respondent for the period preceding his termination without facing or encountering any disciplinary action against him.

2. According to the Claimant, his tribulations began when he sustained a road accident on 17th December 2010, while in the employment of the Respondent. He has further averred that the said road accident rendered him to hospitalization over a duration of two months. When he reported back to work around February 2011, the Respondent verbally informed him that he was no longer her employee and directed him to leave the work premises. The Claimant contends that his termination from employment was unlawful and irregular. He further avers that the Respondent failed to pay him his dues.

3. Against this background, the Claimant seeks the following reliefs:a.A declaration that the Claimant’s services with the Respondent were terminated wrongfully and unfairly.b.Damages for twelve (12) month’s salary(15,000x12) Kshs 180,000. 00/-c.Severance pay at the rate of 15 days wages for each year of service completed (15 days wages per year 7,500x19 years of service)Kshs 142,500/-d.Unpaid salary for two months (at Ksh.15,000/- P.M) Ksh30,000/-e.One month’s salary in lieu of Notice Ksh15,000/-f.The Claimant prays for costs of this claim.g.Any further relief that this Honourable Court may deem fit and just to grant.

4. The Claim was opposed through the Respondent’s Memorandum of Defence dated 31st March 2016. Putting the Claimant to strict proof, the Respondent has denied his averments. In this regard, the Respondent contends that the Claimant was not her employee since she was not a proprietor of the business. Consequently, the Respondent has asked the Court to dismiss the Claimant’s claim with costs.

5. On 9th March 2023, the matter proceeded for part hearing when the Claimant testified and closed his case. Subsequently, the matter was scheduled for defence hearing on several occasions. Be that as it may, the Respondent failed to appear and testify. To this end, the trial was marked as closed on 12th October 2023 and both parties were directed to file written submissions.

Claimant’s Case 6. The Claimant testified in support of his case and at the outset, sought to adopt the documents filed alongside the initial Statement of Claim to constitute his evidence in chief.

7. It was his evidence that he was employed by Kishor Shah and Sanjay Shah on 11th October 1991. In 1993, he was promoted from a shop assistant to a salesman since the Respondent’s business had expanded to a wholesale shop. The name of the business also changed to Macintosh Collections & Gifts. In 2005, the business further changed its name to Humpty Dumpty Gifts Shop and at the time, it was being run by the Respondent, who is the wife of Kishor Shah.

8. It was the Claimant’s further testimony that in 2006, Kishor Shah stopped going to the shop and it was only the Respondent who was attending to the business.

9. The Claimant further averred that he was always in good terms with his employer and he was assigned more duties. That indeed, it is the Respondent who was assigning him duties and paying his salary.

10. On 17th December 2010, the Respondent asked him to hire a tuk-tuk to deliver some goods to a customer in Karen. On his way back, he was involved in an accident and he was rushed to the hospital by a Good Samaritan. He called the Respondent who in turn settled his medical bills.

11. After he was discharged from the hospital, he resumed work in February 2011 but the Respondent turned him away on account that he had been absent from work for too long. He was not given a letter of termination and was not paid his dues.

12. Closing his testimony in chief, the Claimant asked the Court to allow his claim as prayed.

Respondent’s Case 13. As stated herein, the Respondent did not tender oral evidence hence her case was as per the Memorandum of Defence.

Submissions 14. Both parties did not file written submissions as the same were missing from the Court’s physical record as well as the online portal.

Analysis and Determination 15. From the pleadings on record as well as the evidentiary material placed before the Court, the following issues fall for determination: -a.Whether the Claimant was the Respondent’s employee hence a proper party to this suit;Depending on the answer to (a), whether the Claimant’s termination from employment was unfair and unlawful; andb.Is the Claimant entitled to the reliefs sought?

Whether the Claimant was the Respondent’s employee hence a proper party to this suit 16. As stated herein, the Respondent has denied employing the Claimant and has put him to strict proof. This being the case, it is imperative to determine this issue first as it will inform the extent of the Respondent’s liability, if any, with regards to the second issue identified for determination.

17. In support of his case, the Claimant exhibited a copy of his staff identification card, ostensibly issued by Macintosh Collections & Gifts Shop. He further exhibited a copy of a letter bearing the letterhead of Macintosh Collections & Gifts Shop.

18. The Claimant further exhibited a copy of a letter dated 3rd August 2013 from the Respondent’s Advocate, which was a response to his demand letter. In the said response, the Respondent’s Advocates denied liability and specifically, that the Claimant was an employee of the Respondent. The Respondent’s Advocate further stated that the Claimant was an employee of Kishor Shah t/a Humpty Dumpty Gift Shop wherein the Respondent was a Manager.

19. Thus, the question that begs for an answer is whether the Respondent was the Claimant’s employer hence a proper party to this suit.

20. To answer this question, I must revisit Section 2 of the Employment Act, 2007 which defines the term “Employer” to mean any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company.

21. From the above definition, it is apparent that the Respondent is not completely distinct from the company in which she is a Manager.

22. Indeed, it is unequivocal that the term Employer has been interpreted liberally in the Employment Act to incorporate other parties who are not strictly parties to the contract of service.

23. This position was amplified by the Court (Rika J) in the case of Daniel Mutisya Masesi v Romy Madan & another [2013] eKLR, where the learned Judge expressed himself as follows: -“The Employment Act defines the term ‘employer’ expansively, and does not suggest anywhere that directors cannot be joined with their corporate business vehicles in redressing employment wrongs. The Court looks at the whole economic enterprise, not the legal and business reincarnations behind the enterprise. The objection by Romy Madan, alias Rajy Madan, to being added as a Co-Respondent in the claim is rejected.”

24. Applying the above determination to the instant case and bearing in mind the definition of the term “Employer” under the Employment Act, the Court finds that the Respondent being a manager in the business where the Claimant was working, is construed to be an employer hence a proper party to this suit.

25. That said, I now move to determine whether the Claimant was unfairly and unlawfully terminated from employment.

Whether the Claimant’s termination from employment was unfair and unlawful 26. Under Section 45(2) of the Employment Act, termination of an employee’s contract of service is unfair where the employer fails to prove that it was grounded on a fair and valid reason related to the employee’s conduct, capacity or compatibility and that in arriving at the decision to terminate the services of such an employee, fair procedure was not followed. Simply put, an employer is enjoined to prove that termination of employment was both fair substantively and procedurally.

27. I will start by considering whether the Respondent has proved that it had a substantive reason to terminate the Claimant’s employment.

28. It is the Claimant’s case that his employment was verbally terminated by the Respondent when he resumed work sometimes in February 2011. He averred that this was after he had been hospitalized for two months following a road accident he was involved in on 17th December 2010.

29. In support of his case, the Claimant exhibited copies of a Medical Examination Report, Discharge Summary and a summary invoice from Avenue Healthcare.

30. What the Claimant failed to exhibit is evidence that he had formally notified his employer of his illness and formally sought permission to be away on account of sick leave.

31. This takes me to Section 30 (1) of the Employment Act which provides that an employee is entitled to sick leave of at least 7 days with full pay and thereafter, to sick leave of 7 days with half pay, subject to production of the requisite certificate of incapacity to work signed by a duly qualified medical practitioner.

32. Worthy of note is subsection (2) of Section 30 which provides that for an employee to be entitled to sick leave with full pay under subsection (1), the employee shall notify or cause to be notified as soon as is reasonably practicable his employer of his absence and the reasons for it.

33. In this regard, the Act has placed the burden on the employee to notify the employer of the reasons for his or her absence from work on account of ill health in order to be entitled to sick leave. Indeed, sick leave is not automatic.

34. As stated herein, the Claimant did not state whether he notified the Respondent of his medical situation and whether he applied for sick leave as by law required.

35. Further to the foregoing, there is no evidence from the Claimant’s end, to prove that he forwarded his Medical Examination Report and Discharge Summary to his employer, so as to notify her of his medical situation and his need for sick leave.

36. I must say that despite the Respondent settling the Claimant’s medical bills, he was still bound to comply with the statutory requirements and it was not proper for him to imagine that she was aware of the reason for his absence from work.

37. The bottom line is that by failing to abide by the requirements under Section 30 of the Employment Act, the Claimant’s absence from work was unexplained. In the circumstances, the Respondent had a valid and fair reason to terminate the Claimant’s employment on account of absenteeism.

38. As stated herein, am employer is required by law to prove both substantive and procedural fairness. As such, beyond proving that it had a valid and fair reason to terminate the employment of an employee, an employer is required to prove that such termination was in accordance with a process that is fair within the meaning of Sections 45 (2)(c) and 41 of the Employment Act.

39. In this regard, an employer is required to notify an employee of the reasons it is considering terminating his or her employment. Such reasons ought to be communicated in a language the employee understands and in the presence of another employee or a shop floor union representative. It is worth noting that an employee has a right to be heard before such termination is effected.

40. In the instant case, there is no evidence from the Respondent’s end that it applied a fair process in terminating the Claimant’s employment. For instance, there is no evidence that the Claimant was put on notice by the Respondent to the effect that his termination from employment was being considered on account of absenteeism. Similarly, there is no evidence that the Claimant was given an opportunity to explain his absence from duty.

41. As the Court has found, the Respondent had a valid and fair reason to terminate the Claimant’s employment on the basis of absenteeism. However, that was not the end. The Respondent was duty bound to comply with all the applicable statutory requirements which I have stated hereinabove.

42. Fundamentally, the Respondent ought to have granted the Claimant an opportunity to defend himself and give his side of the story. Perhaps it is at that juncture that the Claimant would have availed his medical records to justify his absence from work.

43. In light of the foregoing, I arrive at the inevitable conclusion that the Respondent has not proved that she undertook the process contemplated under Section 41 of the Employment Act. Therefore, the resultant termination of the Claimant from the Respondent’s employment was procedurally unfair hence unlawful.

Reliefs? One month’s salary in lieu of notice 44. As I have found that the Claimant was not terminated in line with a fair process as contemplated under the Employment Act, the Court awards him one (1) month’s salary in lieu of notice.

Compensation for wrongful and unfair termination 45. Having found that the Respondent had a fair and valid reason to terminate the Claimant but failed to follow the stipulated procedure, the Court awards him compensation equivalent to three (3) months’ gross salary under this head. This award has taken into account the Claimant’s own contribution to the termination of his employment.

Severance Pay 46. The Claimant has further sought to be paid severance pay for the period served. This relief is declined seeing that the same is only awarded under Section 40(1) (g) of the Employment Act, where the employment relationship is severed on account of redundancy. This was not the case herein hence the relief does not lie.

Salary for two months 47. The claim for salary for two months is similarly declined as that was the period the Claimant was absent from work. The Court has found as much, having determined that there is no evidence that the Claimant notified the Respondent of his illness, and sought to be granted sick leave pursuant to Section 30 of the Employment Act. Suffice to say, his absence from work was without leave hence he is not entitled to salary during the period in question.

Orders 48. To this end, Judgment is entered in favour of the Claimant against the Respondent and he is awarded: -a.One (1) month’s salary in lieu of notice being Kshs 15,000. 00b.Compensatory damages in the sum of Kshs 45,000. 00 being equivalent to three (3) months of his gross salary.c.The total award is Kshs 60,000. 00. d.Interest on the amount in (c) at court rates from the date of Judgment until payment in full.

49. There will be no orders as to costs as both parties failed to file written submissions.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MARCH, 2024. ………………………………STELLA RUTTOJUDGEIn the presence of:For the Claimant No appearanceFor the Respondent Mr. MoriasiCourt Assistant Millicent KibetORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE