1.This matter was originated by way of a Memorandum of Claim dated 15th April, 2021. The issue in dispute is therein cited as;Unfair/unlawful termination of:
2.The Respondent in a Respondent’s Memorandum of Response dated 8th June, 2021 denies the claim and prays that the same be dismissed with costs.
3.The claimant’s case is that she is a registered trade union with jurisdiction to operate within the Respondents domain and sector.
4.The claimant’s further case is that at all material times relevant to this cause, the grievants were employees of the Respondent with Daniel Karanja Willy having been verbally employed on 14th August, 2018 in the position of Accountant on a one year contract at Kshs.50,000.00 but instead was paid Kshs.25,000.00.
5.This instant grievant had a blemish free stint of service w.e.f 14th August, 2018 to 8th December, 2018 when he was dismissed with no salary despite his clean record.
6.The other grievant, Bernard Kamau Makau was employed on 2nd January, 2018 as a loans officer at a salary of Kshs.15,000.00. He did this for 4 months and was later promoted to Branch Manager where he sat until termination of employment.
7.The claimants other case is that after the company’s financial year, he got a salary increment of Kshs.18,000.00. He did not take leave and had a clean stint of service.
8.The third grievant, Bernard Muia Muteti was employed on 28th October, 2016 as a loans officer at a starting salary of Ksh.10,000.00. As at termination he earned Kshs.15,000.00. He also had a clean stint of service.
9.The 4th grievant, Stephen Maingi Kimeu was employed on 16th September, 2016 and was designated loan officer. His starting salary was Kshs.12,000.00. He served on a clean record and was terminated from service on 23rd December, 2018.
10.The grievants raised an issue of salary raises and agitated for salary raises but were all subsequently dismissed from employment on diverse dates.
11.The claimant’s further case is that the grievants, with others wrote to the board members their grievances and burning issues at work. These were;
12.They therein requested for a meeting with the board members.
13.The claimants’ further case is that when they met on 13th November, 2018, they felt they needed representation and sought out Central Organization of Trade Unions, and she recommended Kenya Union of Commercial, Food and Allied Workers, which they joined.
14.Their subsequent termination of employment came in as follows;
- 07.12.2018- Bernard Kamau Makau
- 14.12.2018 –Bernard Muia Muteti
- 06.12.2018- Daniel Karanja Willy
- 06.12.2018- Stephen Maingi Kimeu
15.Further, on 18th December, 2018 the Respondent’s Chairman wrote to both Ms. Anastacia Syombua and Bridgit Ndinda Muisyo giving them a stern warning. See Exhibit 14(i) & (ii) attached herewith.
16.She prays thus;Ai)Reinstate the grievants and treat them in all respects as if their employment had not been terminated; orii)Re-engage them in work comparable to that in which they were employed prior to their dismissal, or other reasonably suitable work, at the same wage.iii)Cost of the suit to the claimant.B.In the Alternative and where reinstatement is not possible the Hon.court orders as follows;Stephen Maingi Kimeu-Loans OfficerDays worked in December 6days x 21,811.10/26 5,033.331 month notice in lieu of notice 21,811.10Service pay 15 days x 21,811.10/26x2 25,166.65House Allowance 15/100 x 21,811.10=3,271x28 55,618.30Leave not taken 21,811.10 x 26/26 x 1 21,811.10Underpayments:1.5.2017 (21,811.10-15,000) =6,811.10 x 12 81,733.20
17.The respondent states in response to paragraphs 19, 20, 21,22, 23,24, 25, 26 and 27 of the Memorandum of claim that;a)The Respondent states that the termination of the claimants was both substantively and procedurally fair.b)The claimant’s members incited other workers against fellow workers and have confirmed having held illegal meetings in one of their houses without any official notice to the employer, the Respondent.c)The Respondent states that the Claimant’s members illegally organized unsanctioned meetings hosted in the house belonging to one Daniel Karanja with an intention to incite other workers against fellow workers while intimidating and threatening their employer.d)The Respondent states that pursuant to the provisions of Section 43(2) of the Employment Act, 2007, the reasons it gave for the termination of the Claimants’ contracts were matters that, it being the employer at the time of their termination, genuinely believed to exist as demonstrated hereinabove and which caused the Respondent employer to terminate the services of the claimants.e)The Respondent states that after investigations and after hearing each of the claimants, the Respondent opted to terminate the Claimant’s members on grounds that:1.They convened illegal meetings without informing and/or issuing notice to the employer.2.The claimants issued threats to the employer that read in part that, “…we expect feedback before 23rd November, any failure to the above matter will lead to another cause of action” (emphasis)(Refer to the claimant members letter contained at pages 40 of the claimants’ bundle of documents)3.The claimant’s members were unable to avoid trouble while on probation.f)The Respondent states that the claimant’s members were subjected to a fair hearing and were given opportunity to prepare for the disciplinary hearing (‘the interview’).g)The employer heard and considered the explanations by the employees before considering terminating them from employment.h)The Respondent explained to the employees in a language the employee (claimant members) understand the reasons why termination was being considered.i)The import of this is that the decision to terminate the claimant members was made after giving the claimants an opportunity to be heard.
16.The Respondent further states that claimants have admitted to have approached the court with unclean hands having not followed the proper channel before opting to pursue the dispute in court.
Particulars of Admission
The issues for determination therefore are;
1.Whether the termination of the employment of the grievants by the Respondents was wrongful, unfair and unlawful.
2.Whether the claimant is entitled to the relief sought.
3.Who bears the costs of the case.
18.The 1st issue for determination is whether the termination of the employment of the grievants by the Respondent was wrongful, unfair and unlawful. It is not disputed that the termination of employment of the grievants was borne out of misunderstanding between themselves and the Respondents.
19.This was borne out of a dispute as to what was paid to the grievants vis-a-viz what was payable to them in terms of their letters of appointment. It would appear that the grievants made several attempts to have this resolved through meetings with the management but this was not forthcoming due to the reluctance of the Respondents.
20.The grievants sought counsel from COTU and were advised to seek the services of KUCFAW which they resorted to. However, even attempts at intervention by the union were not successful. The grievants services were terminated on grounds of incitement of workers against their employer whereas theirs was an attempt to get the workers to meet and foment the way forward in a resolution of their issues in dispute.
21.The reasons adduced for termination of grievants’ employment fall short of the threshold of Section 43 of the Employment Act, 2007.
22.I therefore find a case of unlawful termination of employment of the grievants and hold as such.
23.The 2nd issue for determination is whether the claimant is entitled to the relief sought. She is. Having won on a case of unlawful termination of employment of the grievants by the Respondent she becomes entitled for the reliefs sought.
24.I am therefore inclined to allow the claim and order relief as follows;i)Stephen Maingi Kimeu
ii)Benard M. Muteti
- Days worked in December 5,033.33
- One (1) months salary in lieu of notice 21,811.10
- Eight (8) moths salary for unlawful termination of employment (Kshs.21,811.10 x 8) 174,486.80
- Service Pay 25,166.65
- Underpayments (1/5/2017 – 1/5/2018) 81,733.20
- Underpayments (1/5/2018 – December 2018) 84,167.65
- Total of claim ……………………………………………… ……....Kshs.392,398.73
iii)Bernard K. Makau
- Days worked in December 4,261.10
- One (1) months salary in lieu of notice 27,023.95
- Eight (8) moths salary for unlawful termination of employment = (Kshs.27,023.95 x 8) 216,191.60
- Service Pay 93,544.40
- Underpayments (28/10/2017 – 28/6/2018) 54,888.80
Underpayments (28/6/2018 – 28/12/2018) 84,167.65Total of claim ………………………………………………………. Kshs.480,077.50
12,023.95 x 3 36,071.85
- Days worked in December 8,769.20
- One (1) months salary in lieu of notice 38,000.00
- Eight (8) moths salary for unlawful termination of employment = (Kshs.38,000.00 x 8) 304,000.00
- Service Pay 21,923.10
- Underpayment for 3 months (27,023.95 – 15,000) =
iv)Daniel K. Willy
- Underpayment for 9 months (38,000 – 15,000) =
- 23,000 x 9 207,000.00
- Total of claim ………………………………………………………. Kshs.615,764.15
v)The cost of the claim shall be borne by the Respondents.
- Days worked in December 6,236.20
- One (1) months salary in lieu of notice 27,033.95
- Eight (8) moths salary for unlawful termination of employment (Kshs.27,033.95 x 8) 216,271.60
- Underpayment for 4 months
- (15/8/2018 – 6/12/2018) 8,092.00
- Total of claim …………………………………………………….….Kshs.257,633.75