Masika & 2 others v Revital Health Care [EPZ] Ltd (Employment and Labour Relations Cause 631 of 2016) [2023] KEELRC 420 (KLR) (16 February 2023) (Judgment)
Neutral citation:
[2023] KEELRC 420 (KLR)
Republic of Kenya
Employment and Labour Relations Cause 631 of 2016
AK Nzei, J
February 16, 2023
Between
Mishi Moses Masika
1st Claimant
Mary Mwaila
2nd Claimant
Jadeline Shali Mwashigadi
3rd Claimant
and
Revital Health Care [EPZ] Ltd
Respondent
Judgment
1.The Claimants herein, Mishi Moses Masika, Mary Mwaila and Jadeline Shali Mwashigadi, sued the Respondent vide a Memorandum of Claim dated June 14, 2016, and pleaded as follows:-a.That the Claimants were employed by the Respondent on diverse dates as casual workers at the Respondent’s Mombasa office.b.That in May 2015, the Claimants were terminated from their service without prior notice or payment of their terminal and contractual benefits for their long service to the company.c.That the Respondent acted in breach of Articles 41 and 47(1) of the Constitution of Kenya and ILO Convention 158 on termination of employment, 1982; and that failure by the Respondent to profer factual and genuine reasons for terminating the Claimants’ employment violated the mandatory provisions of Sections 41,43 and 45 of the Employment Act 2007.
2.The Claimants set out their respective claims as follows:-a.Mishi Moses Masika: employed in the year 2010 -2015 [5 years]i.One month payment in lieu of notice (Kshs 735X26 days) Kshs 19,110ii.Leave pay for 5 years (21 days X 5 years X Kshs 735) Kshs 77,175iii.Service pay (15 days x 5 years x735) Kshs 55,125iv.Compensation for unfair termination (Kshs 19,110x12 months) Kshs 229,320Total Kshs 380,730b.Mary Mwaila: employed in the year 2011-2015 [4 years]i.One month payment in lieu of notice (Kshs 735x26 days) Kshs 19,110ii.Leave pay for 4 years (21 daysx4 years x Kshs 735) Kshs 61,740iii.Years of service (15 days x 4 years x Kshs 735) Kshs 44,100iv.Compensation for unfair termination (Kshs 19,110x12 months) Kshs 229,320Total Kshs 354,720c.Jadeline Shali Mwashigadi: employed in the year 2009 – 2015 (6 years)i.One month payment in lieu f notice (Kshs 735X26 days ) Kshs 19,110ii.Leave pay for 6 years (21 days x 6 years x Kshs 735) Kshs 92,610iii.Years of service (15 daysx6 years x Kshs 735) Kshs 66,150iv.Compensation for unfair termination (Kshs 19,110x12 months Kshs 229,320Total Kshs 407,190The Claimants claimed a total sum of Kshs 1,142,190.
3.The Claimants further pleaded that they were illegally and unfairly terminated and that the Respondent had failed to pay them their contractual and terminal benefits contrary to the Employment Act, and had failed to issue them with certificates of service, contrary to Section 51 of the said Act.
4.The Respondent entered appearance on October 18, 2016 and subsequently filed a statement of Reply on November 8, 2016, denying the Claimants’ claim. In particular, the Respondent denied terminating the Claimants’ services, and pleaded:-a.That the Claimants failed to present themselves for work, and had not presented themselves as at the date of filing the pleadings.b.That the Claimants were paid all their dues for the period they had been engaged by the Respondent.
5.When trial opened, the 1st Claimant adopted her witness statement dated August 24, 2016 as her testimony. She further testified that in May 2015, there was a go slow over unpaid two months’ salary, which was subsequently paid. That the 1st Claimant went to the place of work the following day after the go slow, but was locked out and told by the HRM, one Emmanuel, that the Respondent did not require the Claimants. That the Claimants were not given an opportunity to be heard.
6.Cross-examined, the 1st Claimant testified that she was being paid Kshs 735, inclusive of overtime.
7.It is stated in the 1st Claimant’s witness statement, which the 1st Claimant adopted on oath as her testimony, that she was being paid a daily salary of Kshs 735, which amount was computed and paid monthly.
8.The 2nd Claimant testified that she was employed by the Respondent in April 2011. She adopted her filed witness statement dated August 24, 2016 as her testimony. Save for the date of employment, the 2nd Claimant’s evidence was basically similar to that of the 1st Claimant. She testified that she was being paid at a daily rate of Kshs 735.
9.The 3rd Claimant testified that she was employed by the Respondent in February 2009, and was being paid at the rate of Kshs 735 per day as at 2015. She adopted her filed witness statement dated August 24, 2015 as her testimony. Save for the date of employment, the 3rd Claimant’s evidence was basically similar to that of the 1st and 2nd Claimants.
10.The Claimants were duly cross-examined by Counsel for the Respondent, but their evidence was not shaken.
11.The Respondent did not present any witness on November 18, 2021, the date scheduled for hearing of the defence case, though shown to have been served with a hearing notice on September 6, 2021 and an affidavit of service in that regard duly filed in Court. The Respondent’s case was thus closed without any evidence being presented on behalf of the Respondent.
12.The evidence adduced by the Claimants was not controverted, and therefore stands unchallenged. It was held as follows in the case of Trust Bank Limited -vs- Paramount Universal Bank Limited & 2 Others, Nairobi [milimani] Hccc No 1243 Of 2021:-
13.Further, it was stated as follows in the case of Chrispine Otieno Caleb -vs- Attorney General [2014] eKLR:-
14.Having said that, and having considered the pleadings filed and evidence presented by the Claimants, issues that present for determination, in my view, are as follows:-a.Whether the Claimants were casual employees as at May 2015 when their employment was terminated.b.Whether termination of the Claimant’s employment was unfair.c.Whether the Claimants are entitled to the reliefs sought.
15.On the first issue, although the Claimants pleaded that they had initially been employed as casuals, they further pleaded and testified that they remained in employment for five years (1st Claimant), four years (2nd Claimant) and six years (3rd clamant) respectively. Section 37(1) of the Employment Act provides as follows:-
16.Section 37(3) of the Employment Act provides as follows:-
17.It is my finding that although the Claimants may have been initially employed as casual employees, their respective contracts of service were, by dint of Section 37 of the Employment Act, converted to term contracts where wages were payable monthly and whereon Section 35(1) (c) of the said Act applied. The Claimants became entitled to such terms and conditions of service as they would have been entitled to under the Employment Act had they not initially been employed as casual employees.
18.The Court stated as follows in the case of Francis Ndirangu Wachira -v- Betty Wairimu Maina [2019] eKLR:-
19.On the second issue, Section 41 of the Employment Act sets out an elaborate mandatory procedure that must be adhered to by any employer contemplating termination of an employee’s employment on grounds of misconduct, poor performance or physical incapacity. The Respondent is not shown to have given any reason for terminating the Claimants’ employment as contemplated in Sections 41,43(1) & (2) and 45(2) of the Employment Act. The Respondent did not give any evidence in Court, and therefore there was never an attempt by the Respondent to reveal the reasons for terminating the Claimants’ employment. Further, the Claimants were not issued with termination notices pursuant to Section 35(1) (c) of the Employment Act.
20.It is my finding that in all the circumstances of the case herein, the Respondent did not act in accordance with justice and equity in terminating the Claimants’ employment. The termination was, therefore, unfair pursuant to Section 45(4) (b) of the Employment Act, and I so declare.
21.Consequently, and having considered written submissions filed by Counsel for both parties herein, I make a finding that the Claimants have proved their respective claims on a balance of probability, and are entitled to the reliefs sought. I allow the Claimants’ respective claims as set out in paragraphs 2 of this judgment, and hereby enter judgment in favour of the 1st, 2nd and 3rd Claimants against the Respondent as follows:a.1st Claimant - Kshs 380,730b.2nd Claimant - Kshs 354,270c.3rd Claimant - Kshs 407,190Total Kshs 1,142,190
22.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act.
23.The Respondent shall issue the Claimants with appropriate Certificates of Service pursuant to Section 51 of the Employment Act within thirty days of this judgment.
24.The Claimants are awarded costs of the suit and interest at Court rates.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 16TH FEBRUARY 2023.AGNES KITIKU NZEIJUDGEORDER view of restrictions on physical Court operations occasioned by the COVID-19 Pandemic, this judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of Court fees.AGNES KITIKU NZEIJUDGEAppearance:………………………for Claimant…………………… for Respondent