Salima Hassan Kombo v Hotel Sapphire Limited [2015] KEELRC 1350 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT MOMBASA

CAUSE NUMBER 11 OF 2013

BETWEEN

SALIMA HASSAN KOMBO ................................................................. CLAIMANT

VERSUS

HOTEL SAPPHIRE LIMITED ….................................................... RESPONDENT

Rika J.

Court Assistant – Mr. Kombe

Mr. Olewe instructed by Mbugua Mureithi & Company Advocates for the Claimant

Mr. Ojode instructed by Ojode Udoto & Onjoro Advocates for the Respondent

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ISSUE IN DISPUTE:  TERMINAL BENEFITS

AWARD

(Rule 27(1) (a) of the Industrial Court (Procedure) Rules 2010)

1.  The facts in this dispute are similar in main, to the Industrial Court at Mombasa, Cause No. 9 of 2013, between Lennox Ndume Misunga v. Hotel Sapphire Limited.

2.  Although the Claimants, gave evidence separately, the Witness for the Respondent in Misunga, Francis Furaha Thoya, gave evidence answering all the Claims.

3.  There are common prayers sought in these series of Claims, registered as Cause No. 9 to Cause No. 14, all of 2013.

4.  In this Claim the Court, guided by the determination in Cause No. 9 of 2013, Finds and Awards:-

(a)        The Claimant was employed by the Respondent as a Room Steward effective from 12th September 2005, earning Kshs.9,865 per month.

(b)       She was advised by the Respondent on 1st November 2012, that she had 152 days of accrued annual leave.

(c)        She was to proceed on annual leave on 15th November 2012 to resume on 14th December 2012.  The Leave Schedule prepared by the Respondent showed she     would take 27 days of annual leave, leaving a total balance of 125 days.

(d)       She resigned voluntarily while on  leave, on 16th November 2012 leading her Employer to revise down, her outstanding annual leave days.

(e)        The deposit of Kshs.20,044 made by the Respondent to the Labour Office on account of the Claimant's outstanding leave, did not satisfy her outstanding annual leave entitlement.

(f)        The Claimant is granted 125 days of annual leave pay at Kshs.9,865 ÷26 working days=Kshs.379. 40 x 125 days = Kshs.47,427. 90.

(g)       She merits service pay for the period between 12th September 2005 to 12th September 2007- a period of 2 years.  Service pay is granted at Kshs.9,865÷26 working days – Kshs.379. 40 x 15 days = Kshs.5,691. 34 x 2 years = Kshs.11,382.

(h)       The Claimant is granted16 days' salary and house allowance for December 2012 at Kshs.379. 40 x 16=Kshs.6,070.

(I)        The Respondent shall release to the Claimant her Certificate of Service forthwith, as required under Section 51 of the Employment Act 2007.

(j)        It is declared the Respondent's treatment of the Claimant amounted to unfair labour practice, and violated Article 41 of the Constitution of Kenya.

(k)       For reasons given in Misunga, there  shall be no order on costs and interest.

In Sum, IT IS ORDERED:-

(i)        It is declared the Respondent's treatment of the Claimant amounted to unfair labour practice, and was in violation of Article 41 of the Constitution of Kenya.

(ii)       The Respondent shall pay to the Claimant annual leave pay at Kshs.47,427. 90;    service pay at Kshs.11,382; 16 days' salary and house allowance at Kshs.6,070 – total Kshs.64,879.

(iii)      The Respondent shall release to the Claimant his Certificate of Service forthwith.

(iv)      The monetary award be satisfied within 21 days of the delivery of this Award.

(v)       Parties to meet their own costs, and no order on interest.

Dated and Delivered at Mombasa this 6th day of March 2015.

James Rika

Judge