Paul v Pride In Hotels & Investments Limited (Cause 737 of 2013) [2014] KEIC 123 (KLR) (Civ) (30 April 2014) (Judgment)

Paul v Pride In Hotels & Investments Limited (Cause 737 of 2013) [2014] KEIC 123 (KLR) (Civ) (30 April 2014) (Judgment) Josephine Mogaka Paul v Pride in Hotels & Investments Limited [2014] eKLR Neutral citation: [2014] KEIC 123 (KLR) Republic of Kenya In the Industrial Court at Nairobi Civil Cause 737 of 2013 Nzioki wa Makau, J April 30, 2014 Between Josephine Mogaka Paul Claimant and Pride In Hotels & Investments Limited Respondent Judgment 1.The Claimant herein filed this suit on 21st May 2013 seeking theresolution of a dispute between her and the Respondent which sheframed as unfair and unlawful dismissal. She claimed that she waspaid remuneration below the lawful wages as recommended in theRegulation of Wages (General) Order and that she was not given anywarning by the Respondent prior to termination and was in additionentitled to overtime as she worked beyond the stipulated 8 hours perday. She testified on 5th March 2014 and stated that she wasemployed on 2nd January 2011 and worked for 5 years with theRespondent as a Cleaner. She testified that the name of the hotelchanged and that she had worked from 2008 when the name wasGlory Hotels before the change to Pride Inn. She testified that she wastold by the General Manager Mr. Lawrence Kinyua not to report towork on 3rd September 2012 but report to the head office. She testifiedthat she was given a letter of commendation dated 1st October 2012.She was not given a letter of termination. She denied deserting workas stated by the Respondent’s lawyer since she was given thecommendation letter in October 2012 at the Rhapta Road Branch ofthe Respondent and at the time of receiving the commendation lettershe was pursuing her terminal benefits or return to work. She thusclaimed notice, leave for 2012, house allowance, compensation forunfair termination and service for 5 years as well as underpayments.She testified that she earned 7,000/ at the time of joining and at thetime of leaving earned 9,000/-. 2.In cross examination the Claimant was hard pressed to demonstratean address through which she could be reached. She testified that theletter of termination was with the Respondent as she never receivedit. She stated the Respondent has her cellphone number and theRespondent never gave her or her lawyer the termination letter. Shetestified that she was on talking terms with the General Manager whowrote her the commendation letter and she was never told she hadbeen fired. In re-exam she testified that there was no letter oftermination attached to the lawyers letter. That marked the end of theClaimant’s case. 3.The Respondent denied the Claim and refuted that the Claimant wasentitled to any of the sums claimed in her statement of Claim. TheRespondent’s Response to Claim was filed on 10th July 2013. In it, theRespondent averred that the Claimant was made aware that theremuneration paid to her was inclusive of house allowance. TheRespondent denied the Claimant was verbally informed not to reportto work. The Respondent contended that the Claimant deserted workfor the whole month of September forcing the Respondent toterminate the Claimant. The Respondent called Mr. Johnstone MataraKibwaro the Administration Officer of the Respondent. He testified thathe joined the company in October 2005 in the same capacity. Hetestified that the Claimant joined Pride Inn in 2011 as acleaner/housekeeper at Rhapta Westlands. He stated that her salaryincluded house allowance of 15% and any other overtime that couldbe worked on any day of the week. He testified that in the industrytimings are not fixed as guests may delay and the Claimant was paidper hour. He testified that the Claimant never brought any claim forovertime. He testified that the Claimant deserted work and resurfacedlater to claim her dues. He added that the Claimant’s letter ofcommendation was signed by the General Manager Mr. LawrenceKinyua at the behest of the Claimant to enable her pursue otherprospects. 4.In cross exam by Mr. Nyaanga, the witness testified that theemployees of the Respondent had to sign new contracts when thecompany changed name from Glory Hotel to Pride Inn Hotels. Headmitted that the law provided that the employer has to state thename, age, permanent address of employee and the name of theemployer in the contract of employment and if the employer does notget the address of the employee then that was a fault attributable tothe employer. He admitted that the contract of the Claimant was notspecific on house allowance as there was no provision only mention ofgross salary. He stated that the Claimant did not come to work fromSeptember 30th and when the payroll was reconciled it was confirmedthat the Claimant had not been at work. He testified that the letter ofemployment and payslip are prepared by the employer. 5.In re-examination by Miss Bukachi, the witness testified that theClaimant freely signed the contract of employment and there was noproof of coercion. He testified that the only thing that changed was thename and everything on the ground remained the same. He testifiedthat the company paid NSSF and NHIF dues. He testified that he wasnot aware of any other employee who was told not to come to work.He stated that he was not in agreement that the Claimant was told notto come to work. 6.The parties closed their respective cases and filed submissionsreiterating their various positions. The issues that are crystalised fordetermination are i) Whether the Claimant was wrongfully terminated or whethershe absconded dutyii) Whether the Claimant was underpaidiii) Whether the Claimant was paid house allowance or notiv) Whether the Claimant was entitled to overtime pay7. On the letter of her appointment exhibited, the Respondent took onthe liabilities of Glory Hotels the predecessor of Pride Inn Hotels, as aresult of a name change. There is no dispute that any liabilities thatmay fall will be borne by the Respondent. 8.The Claimant contends that she was unfairly terminated a claimresisted by the Respondent. In the evidence tendered by the Claimant,she stated that she was told not to report to work and afterunsuccessfully following up on her deployment sought a letter ofcommendation. She stated that she was not told why she wasterminated. The Respondent on the other hand testified that theClaimant was advised to collect her termination letter but she failed,neglected and/or refused to do so. It is apparent that the Claimant wasterminated on or around 3rd September 2012 when she was asked notto report to work effective the following day. There is no letter oftermination exhibited and as such the reason for termination if at all,is anyone’s guess. The termination of an employee is provided for under Part VI of the Employment Act 2007. In order to ascertainwhether a termination was proper or not enquiry has to be made as tothe cause or reason for the same. The fact that the Respondentasserts that the Claimant was terminated and no reasons have beenproffered, the Court is inclined to agree that the termination wasunlawful. Section 35 of the Employment Act provides that if anemployee who receives notice of termination is not able to understandthe notice the employer shall ensure that the notice is explained orallyto the employee in a language the employee understands. There is noiota of evidence that the Respondent complied with this Section and Ifind that the termination was unlawful in terms of Section 47(5) of theEmployment Act. The employer has not justified the grounds oftermination merely stating that there is a termination letter whosecontents are confidential. The evidence adduced suggests that theClaimant did not abscond from duty. If she had done so, the letter ofcommendation would not have been issued. If the termination wasprocedural she would have received the letter in October when shewas given the letter of commendation. 9.The Claimant testified that she was paid Kshs. 9,000/- at the time ofher termination but failed to produce evidence of the allegedunderpayment. The Court cannot therefore hold that she wasunderpaid. As regards the third issue on whether there was houseallowance paid, there is no proof adduced by the Claimant that shewas not paid house allowance. He who asserts must prove and it wasthe duty of the Claimant to prove the sums were unpaid. No evidencewas tendered regarding the non-payment to enable the Court find inher favour. Equally the fourth issue collapses as she was not able toprove that she worked overtime. She was in an industry where thereare no fixed times and if there was a claim on overtime there ought tohave been demands for payment for overtime made each month instead of at time of drawing pleadings. Evidence of such claims wouldhave been letters or notes requesting for the said overtime. 10.The upshot of the foregoing is that I find the Claimant was unfairlyterminated from service in terms of the Employment Act. Since noevidence was tendered regarding the payment of NSSF dues, theprovisions of Section 35 apply. The Claimant is entitled to reasonablenotice assessed at one month’s salary as well as service. Service is thesum payable for the years worked. The Claimant worked for 4 yearsand her last salary was Kshs. 9,000/-. She is entitled to 15 days pay foreach year worked totaling to Kshs. 18,000/-. As the termination of theClaimant’s services was unlawful and not in conformity with theEmployment Act I will award her compensation for 6 months totalingKshs. 54,000/-. 11.The Claimant was substantially successful in the suit and will thushave costs of the suit.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL 2014****NZIOKA wa MAKAU****JUDGE**