Pius Machafu Isindu v Lavington Security Guards Limited (Cause 1050 of 2012) [2014] KEIC 121 (KLR) (8 May 2014) (Judgment)

Pius Machafu Isindu v Lavington Security Guards Limited (Cause 1050 of 2012) [2014] KEIC 121 (KLR) (8 May 2014) (Judgment) Pius Machafu Isindu v Lavington Security Guards Limited [2014] eKLR Neutral citation: [2014] KEIC 121 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 1050 of 2012 Nzioki wa Makau, J May 8, 2014 Between Pius Machafu Isindu Claimant and Lavington Security Guards Limited Respondent Judgment 1.The Claimant sued the Respondent for the wrongful dismissal of theClaimant from employment. The Claimant averred that he was employedon 2nd July 2001 and was dismissed on 24th October 2011 without notice.He thus claimed service pay for 3 years – 2008 till 2011, notice pay for 1month, accrued leave not taken being 216 days, overtime from 2001 till2011, rest days, unpaid public holidays and house allowance. He alsosought compensation for unlawful dismissal as well as unremitted NSSFcontributions. 2.The Respondent defended the suit and in its defence denied the claim onovertime, day off and averred that the Respondent did not dismiss theClaimant who absconded from duty. The Respondent asserted that it didnot refuse to grant Claimant off days as alleged. The Claimant was liablefor deserting the Respondent and ought to pay notice. 3.Claimant testified that he was engaged on 2nd July 2001 by Chelimo butdid not receive a letter of employment. He received Ksh. 8,300/= permonth consolidated at time of his dismissal. He stated that he wasterminated on 24th October 2011. He produced a letter of introduction toEquity Bank which indicated the Claimant was employed in February2002. He claimed no NSSF dues were paid until 2003. He stated that heworked for 12 hours each day and thus claimed overtime. He stated thathe got 4 days off each month but the Respondent deducted the 4 daysfrom salary. He testified that he worked on public holidays and that hedid not receive any pay as house allowance. 4.In cross exam he insisted he was employed on 2nd July 2001. He testifiedthat he was hired by Bosco the Operations Manager and Chelimo was thedirect manager. His pay rose over the years from 2100/= till 8,300/=. Hetestified that his supervisor Kibisu sent him to the office and he metKilonzi when he got to the office and he was sent home. He indicated hehad a witness who had a payslip and that marked the end of histestimony. 5.The Claimant called a witness John Elayesa Likhalami who testified that heknew the Claimant and that they worked together. He confirmed that inOctober 2011 they were working together and the Claimant wassummoned to office. He was not aware of any complaint by a client and later heard the Claimant had been dismissed. He denied receiving anypayslip. He testified that he did not receive any overtime or houseallowance, and that only basic pay was paid. He testified that theRespondent issued 3 payslips to Equity on account of a loan of 15,000/=.The document was not objected to and was produced as evidence. Hewas employed on 1st February 2003. He referred to payslip to show therewas no house allowance and no overtime. There was a deduction of 981/=for overtime. He testified that the Claimant worked well and was notabsent from working during the time they worked together. 6.In cross exam he testified that he did not recall any complaint against theClaimant. He testified that he was the Claimant’s senior and if there wasa complaint it would have been made to him. He did not receivetravelling allowance and the payslip he had was an extra copy he hadreceived when he was seeking a loan. He testified no payslips are given. 7.The Respondent called Edwin Kibisu Alumira, Paul Kilonzi Kithome andBasil Tonto. Edwin Kibisu testified that he was initially operations-in-charge and currently is a supervisor. He testified that he received acomplaint from a client on the Claimant’s late arrival to work. Hesummoned the Claimant on 22nd October 2011 to the office and theClaimant met the deployment officer. 8.In cross examination he testified that he did not have any document toshow the employment. He is the one who summoned the Claimant butdid not know when the Claimant was terminated. He did not write thedispatch note which had the name Kilonzi on it. He testified that he didnot sack the Claimant and neither did he give the Claimant a warning. 9.In re-exam he stated the dispatch note is from Deployment note which isgiven to the guard. The deployment is by Deployment note. He testifiedthat the Claimant reported 50 minutes late. He identified the Claimant incourt. 10.The Respondent’s second witness was Paul Kilonzi who testified that hewas the Deployment officer. The Claimant was sent to him as theClaimant had been given a note which is given to an officer to show anoffence was committed by the officer. He saw the note and referred theissue to the HR Officer and she stated the Claimant should undergo arefresher course. A refresher course us for guards who commit andoffence. When he told the Claimant the Claimant said he would ratherresign than go for the refresher course. He could not force the Claimantto go for training and the Claimant just left and did not return. 11.In cross exam he testified that his work is to ensure training, refreshercourses and deploy those who have to undergo refresher. He also did recruitment and vetting. He testified that Nancy in HR was the one whodealt with employment matters and is the one who recommended therefresher course. He was put on refresher course because he was alwaysa late comer. The instructions for the refresher course were verbal. TheClaimant did not go to work from 24th October. He testified that theClaimant absconded from work. He thus was of the view the Claimant isnot entitled to be paid the sums claimed. 12.The final witness for Respondent was Basil Tonto who was the newlyappointed HR Manager of the Respondent. He testified that his duties areto recruit, discipline, formulate procedures for human resources rewardand discipline. He testified that the Claimant deserted duty. TheClaimant was summoned to the office by the supervisor but refused toattend the refresher course. He testified the Claimant declined and leftbut was not dismissed. If the Claimant had been dismissed theRespondent would have done so in writing. He testified the Claimant wasgiven leave and there was a signed leave form. He denied off days arededucted and stated the salary was inclusive of all monthly dues. Hetestified that each month payslips are given and salary is paid to thebank. He also testified the NSSF dues were deducted and remitted toNSSF. The Claimant deserted duty and was thus not entitled to notice,and that he was paid all his dues including his last salary. He testifiedthat if there is overtime then it multiplicand of salary and staff are paid over time when it is due. He testified that house allowance is not shownon the itemized payslip and he thus did not know if staff were paid houseallowance. 13.In cross exam he testified that he relied on the statement of ShalletKanus filed in court and the file. He relied 100% on what he was told onthe matter and confirmed the Claimant was paid everything up to hisOctober salary. He testified that the certificate of service was not givenas Claimant deserted employment He testified there was a summonletter by the supervisor but there is no other letter he had seen to theClaimant notifying the Claimant he had deserted. 14.The Claimant filed submissions which reiterated his position. Hesubmitted that it was responsibility of the employer to keep a writtenrecord of all employees employed by the said employer. The Claimantwas abruptly stopped from employment while on duty at GlenbrookApartments in Kilimani. The Respondent’s representative Edwin Kibisusummoned the Claimant to the office the next day for the lateness. It wassubmitted that no record was produced to show that. It was submittedthat Paul Kilonzi failed to produce any evidence of desertion. No recordwas produced to show the Claimant was a habitual late comer. TheClaimant submitted there was no show cause letter issued to the Claimantor even a warning letter for lateness. The Claimant submitted the payslip produced by the Claimant’s witness proved that no house allowance waspaid. 15.The Respondent submitted that the Claimant had failed to prove hiscase and that he was summoned to the office and met Kibisu who hadsummoned him due to lateness at the workplace. The Claimant’s witness,it was submitted was not a supervisor of the Claimant and did not haveauthority to receive complaints against his colleague. Kilonzi in histestimony stated the Claimant was told to attend refresher course anddeserted employment. It was thus submitted the Claimant deserted duty.The Respondent submitted the evidence of the Claimant was unreliableand not credible. No record or evidence of complaint to labour office wasproduced. 16.The issue for determination is principally if the Claimant was unlawfullyor unfairly dismissed from employment. The Claimant testified that hewas employed in 2001 yet his letter of Equity stated he was employed inFebruary 2002. His witness who was employed in February 2003 testifiedthat the Claimant was junior. The Claimant testified that he wasemployed by Chelimo a director but in cross-exam testified that he wasemployed by Bosco the Operations Manager. He was adamant that henever received a payslip and was not paid house allowance. If indeedthat was true how then did he determine that he was not paid house allowance? What led him to believe that his salary excluded houseallowance? The Claimant testified that he was asked to go to the officesof the Respondent and when he reported he met Kibisu and Kilonzi. Hesays that he was told by an Arce Manager he could not name to go homeand wait to be called. He did not produce any letter to that effect and itwould seem the Respondents version of what transpired on theirrespective roles in the summons to the Claimant and their evidence wasconsistent. The Claimant sought overtime for the period he worked yetthere was no record he availed of his alleged extra hours. No notedemanding payment of overtime was produced either and it is ampleclear that the Claimant made many allegations but failed to prove them.He displayed a statement from NSSF which proved that his employ placedhim in the category of employees who are not entitled to service. Hehowever was able to demonstrate that the Respondent was tardy inremittance of NSSF dues. The Court orders the Respondent to avail to Court a statement showingthe state of the Claimant’s NSSF account between February 2002 andOctober 2011. This must be done within 2 weeks of today. The Claimantactually went on leave and had no leave balance due. 17.The upshot of the foregoing is that the Claimant failed to prove hiscase on a balance of probabilities and the same is dismissed with costs.He admitted receiving his salary in October and since he deserted is not eligible for notice or compensation. Claimant must get certificate ofservice in any event per S.51 Employment Act.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 8 TH DAY OF MAY 2014.****NZIOKI WA MAKAU****JUDGE**