Paul Kipkemoi Lelei v Laminate Tube Industries Limited [2017] KEELRC 2004 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET

CAUSE NO. 21 OF 2017

(Originally Nakuru Cause No. 632 of 2014)

PAUL KIPKEMOI LELEI                                         CLAIMANT

V

LAMINATE TUBE INDUSTRIES LIMITED      RESPONDENT

JUDGMENT

1. This Cause was heard on 2 November 2017 when Paul Kipkemoi Lelei (Claimant) and Valentine Saina, the Human Resource Manager with Laminate Tube Industries Ltd (Respondent) testified.

2. Although the parties had framed some 9 questions as arising for the Court’s determination, the real issues can be condensed into 2, to wit, whether the Claimant’s employment was unfairly terminated and appropriate remedies/orders.

3. The Claimant filed his submissions on 8 November 2017, while the Respondent filed its submissions on 21 November 2017.

4. The delivery of this judgment has been brought forward due to my transfer (Deputy Registrar notified parties of the change through her letter dated 10 November 2017).

Fairness of termination

5. Pursuant to section 41 of the Employment Act, 2007, an employer is under a statutory obligation to inform an employee of any allegations which may lead to termination of the employment contract if the allegations involve misconduct, performance or physical incapacity.

6. In the instant case, the Respondent’s Human Resources Manager, mirroring what was stated as the reason in the termination letter, stated that the termination of the Claimant’s contract was grounded on a contractual provision allowing termination on notice of 1 month or pay in lieu of notice.

7. However, under cross examination, the witness gave the reason as performance.

8. Before the coming into effect of the Employment Act, 2007, an employer could terminate an employee’s contract without cause, for a good reason, for a bad reason or for no reason provided that the contractual provision on termination was complied with or appropriate amount paid in lieu thereof.

9. In my view, the legal implication of section 41 of the Employment Act, 2007 as read with sections 43 and 45 have radically shifted the legal framework and it is imperative that the employee is given reasons and afforded an opportunity to make representations.

10. If the real reason for the Claimant’s dismissal from employment was performance (this reason was not given in the dismissal letter) then the Respondent should have given the Claimant an opportunity to make representation. He was not.

11. The Court therefore can conclude that the termination of the Claimant’s contract was not only procedurally unfair, but it was anchored on a common law position which has been altered by statute and therefore invalid.

Appropriate remedies

Wages for October 2013

12. According to the final dues schedule, the Claimant was paid and acknowledged receipt of Kshs 9,765/- as October 2013 wages and therefore he is not entitled to this head of relief.

Wage for November 2013

13. The effective date of separation was 1 November 2013 and the Court holds that the Claimant is entitled to the Kshs 373/30 pleaded.

Pay in lieu of notice

14. The Claimant was paid and acknowledged receipt of Kshs 9,765/- as 1 month pay in lieu of notice.

Gratuity

15. If by gratuity the Claimant meant service pay in terms of section 35(5) of the Employment Act, 2007, he is not entitled to this head of relief as he was a contributor/member of the National Social Security Fund.

16. If there was a contractual basis for gratuity as opposed to service pay, no evidential basis for it was disclosed or proved in Court.

Compensation

17. The Claimant served the Respondent for about 10 years and considering the length of service, the Court is of the view that the maximum compensation would be appropriate and fair (gross wage at separation was Kshs 11,229/-).

Conclusion and Orders

18. The Court finds and holds that the termination of the Claimant’s contract was not only procedurally unfair but invalid, and the Court awards him and orders the Respondent to pay him

(i) November 2013 wage      Kshs      373/30

(ii) Compensation                  Kshs    134,748/-

TOTAL                                       Kshs 135,121/30

19. Claimant to have costs on half scale.

Delivered, dated and signed in Eldoret on this 24th day of November 2017.

Radido Stephen

Judge

Appearances

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

For respondent  Mr. Bungei instructed by Kamau Lagat & Co. Advocates

Court Assistants  Nixon/Etyang