1.The claimant initiated the suit herein vide a Memorandum of Claim filed on 25th February, 2017. The Claim was later amended on 24th April, 2019. Through the amended Memorandum of Claim, the claimant avers that he was employed by the respondent from 1st February, 2014 as a welder. That he worked continuously and to the satisfaction of the respondent. He avers that on 15th February, 2016, upon resuming from leave, the respondent’s General Manager Mr. Gurman Singh, ordered him to go back home as there was no work for him. According to the claimant, this amounted to summary dismissal, which he terms as discriminatory, unfair, unlawful and inhumane. Consequently, the claimant seeks against the respondent compensatory damages, notice pay and unpaid leave days totaling the sum of Kshs 184,800/=.
2.The respondent neither entered appearance nor filed a response to the Memorandum of Claim despite being served. The claimant presented before Court an Affidavit of Service sworn on 26th August, 2021 by one Owour Reen who avers that she effected service of the summons to enter appearance and amended Memorandum of Claim upon the respondent.
3.In absence of a response from the respondent, the matter was scheduled to proceed for formal proof pursuant to Rule 15 (3) of the Employment and Labour Relations Rules, 2016.
4.At the start of the hearing, the claimant, sought to rely on his witness statement, which he asked the Court to adopt as his evidence in chief. He also produced the bundle of documents filed together with his claim as his exhibits before Court.
5.He testified that he was not informed of the reasons for his termination and that he was not issued with a notice prior to. He further stated that he had done nothing wrong to warrant summary dismissal by the respondent. It was the claimant’s further testimony that his efforts to have the dispute resolved through the Transport Workers Union, proved futile. He asked the Court to allow his claim as prayed.
6.The claimant submitted that there was no criterion applied in terminating him. That the manner in which he was selected was unfair as the same did not align with Section 40 (1) (c) of the Employment Act. It was further submitted that due process was not followed in the termination of the claimant. The cases of Walter Ogal Anuro vs Teachers Service Commission (2013) eKLR and Kenya Airways Limited vs Aviation & Allied Workers Union Kenya & 3 others (2014) KLR were cited in support of the claimant’s submissions.
Analysis and determination
7.From the pleadings on record as well as the evidence placed before Court, the issues falling for the Court’s determination are;a.Was the claimant’s termination unfair and unlawful?b.Is the claimant entitled to the reliefs sought?Was the claimant’s termination unfair and unlawful?
8.The claimant has alleged that his termination was illegal, unfair and unlawful. To resolve this issue, Section 43(1) of the Employment Act (Act) is key, as it places the burden of proving the reasons for termination on an employer and failure to do so, such termination is rendered unfair. In addition, section 45 (2) of the Act, qualifies a termination of employment as unfair where the employer fails to prove that the reason for the termination is valid, fair and relates to the employee’s conduct, capacity or compatibility; or based on the operational requirements of the employer.
9.The aforementioned statutory provisions constitute substantive justification and is also the first limb towards proving that a termination was either fair or unfair.
10.The second limb is with respect to procedural fairness and it is provided for under section 45 (2) (c) of the Act. In this regard, an employer is required to prove that it complied with the requirements of fair process in terminating the services of an employee. Section 41(1) of the Act stipulates in a detailed manner what entails fair procedure. Specifically, an employer is required to notify an employee of the intended termination. As such, the employee is to be notified of the reasons thereof in a language he or she understands and in the presence of another employee or a shop floor union representative.
11.The upshot of the foregoing is that, an employer must justify that there was reason to terminate the services of an employee and that such termination was undertaken in line with fair procedure.
12.Back to the case at hand, it is evident from the record before me that the reasons for the claimant’s termination are not known at all as he was not issued with a letter of termination. The claimant avers that he was informed by the respondent through one Mr. Gurman Singh that there was no work for him hence was ordered to go back home. This suggests termination by way of redundancy. Nonetheless, since there is no evidence before the Court to that effect, it only leaves room for speculation and remains unclear why the claimant was let go by the respondent.
13.Besides, there is no evidence that the claimant was notified of the reasons that may have led to his termination. Similarly, there is no evidence to suggest that he was given an opportunity to tender his defence against any allegations the respondent may have had against him.
14.Coupled with the foregoing, the respondent did not participate in the hearing nor tender a defence or any evidence whatsoever. As such, it did nothing to refute the assertions by the claimant, hence his case stands.
15.The net effect of the foregoing is that there is a probability that there were no reasons at all, to justify the claimant’s termination and no disciplinary hearing or such related process was undertaken prior to the termination. In other words, the termination of the claimant did not meet the legal threshold set out under sections 41, 43 and 45 the Act.
16.The legal threshold in this regard could not have been put better as was done by the Court of Appeal in the case of Janet Nyandiko versus Kenya Commercial Bank Limited  eKLR, thus: -
17.I fully adopt and reiterate the above determination and hold that the claimant’s termination having failed to meet the legal threshold under the Act, has one resultant effect, that is, it was unfair and unlawful.
18.As I have found that the claimant’s termination was unfair and unlawful, I will award him six (6) month’s gross salary as compensatory damages. This award has been informed by the length of the employment relationship.
19.The claimant is further awarded one (1) month’s salary in lieu of notice.
20.As regards, the claim for leave, I will award the claimant a sum equivalent to 21 leave days as it is evident from the record that he proceeded for leave for 10 leave days in 2015 and 11 days in 2016. Cumulatively, the claimant had a balance of 21 leave days in 2015 and 2016, by the time he left the respondent’s employment.
21.Accordingly, Judgment is entered in favour of the claimant against the respondent and he is awarded: -a.Compensatory damages in the sum of Kshs 79,200/= which sum is equivalent to 6 months gross salary.b.One month’s salary in lieu of notice being Kshs 13,200/=.c.Unutilized 21 leave days Kshs 9,240/=.d.The total award is Kshs 101,640/=.e.Interest on the amount in (d) at court rates from the date of Judgement till payment in full.f.The claimant shall also have the costs of the suit.