Ochada v Nyanza Reproductive Health Society (Cause 738 of 2012) [2014] KEIC 133 (KLR) (9 January 2014) (Judgment)

Ochada v Nyanza Reproductive Health Society (Cause 738 of 2012) [2014] KEIC 133 (KLR) (9 January 2014) (Judgment) Marilyn Auma Ochada v Nyanza Reproductive Health Society [2014] eKLR Neutral citation: [2014] KEIC 133 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 738 of 2012 Nzioki wa Makau, J January 9, 2014 Between Marilyn Auma Ochada Claimant and Nyanza Reproductive Health Society Respondent Judgment 1.The Claimant herein sued the Respondent on account of thetermination of her contract on 1st December 2011. She soughtpayment of notice, leave days, leave allowance, salaryincrement, payment for the balance of her contract, cost ofthe suit and any other relief the Court may deem fit to grant. 2.The Respondent was opposed and stated that the Respondentterminated the Claimant’s contract for just cause. TheRespondent averred that the Claimant was evaluated andfound to have been underperforming and thus was dismissed. 3.The Claimant represented by Mr. Bosire testified on 6th June2013 and stated that she was employed as Accounts Assistantin March 2009 and was promoted to Accountant thereafter butwas laid off without notice by the Respondent in December2011. She earned 69,300/- a month. She said that she wasnot given prior warning and was given a letter declaring herredundant on the evening of 30th November 2011. She statedthat previously she had not had any issue with performanceand had carried out her duties with diligence. She thus sought payment of the balance of the contract which was to run from3rd March 2008 to 31st July 2012 as well as 1 month’s notice,leave dues for 22 days, leave allowance (50% of salary), 5%salary increase. She testified that she was psychologicallyprepared to work until the end of the contract. She viewed thetermination as malicious. 4.The Respondent represented by Mr. Mbaluto called FerdinandKizito Osama the Human Resource Manager of theRespondent. He testified that the Claimant was terminated forjust cause as her performance was found wanting. He saidthat the Claimant could be terminated by being given noticein writing or on payment of a month’s salary in lieu of notice.According to the personnel records she was underperformingand had been warned about the same by the Respondent. Hestated that the Claimant was to be paid the notice, daysworked and any outstanding leave days. He said the contractcannot be completed as the Respondent terminated thecontract as her performance was poor. He confirmed that atthe time the Claimant was earning 69,300/-. The Claimant wasnot paid her dues as she had not cleared with the Respondent.He opined that as regards redundancy the law was followed. 5.Mr. Mbaluto intended to call one other witness but the day forthe same came and there was no witness and counsel did notattend either. The Court therefore closed the defence caseand parties were to file submissions. 6.The Claimant filed written submissions on 16th October 2013while the Respondent did not file any submissions. TheClaimant inter alia restated her case and added thatredundancy has to be in accordance with Section 40 of theEmployment Act 2007. 7.I have carefully considered the pleadings of parties, theevidence adduced both orally and documentary, thesubmissions filed by the Claimant and find that indeed theClaimant was terminated for reasons stated on the letter of 1stDecember 2011 to be poor performance. Her termination wasstated to be a declaration of redundancy by the Director Dr.Walter Obiero the author of the letter in question. She claimedshe was not given notice and the plain reading of the letterindicates that indeed she was not given notice as thetermination was to take effect immediately. The Respondent’switness who joined the Respondent in January 2013 testifiedthat the Claimant was entitled to pay for the days worked andthe leave days accrued but had not cleared with theRespondent. He did not however produce any records to showthe Claimant was paid the salary for November 2011. 8.The Claimant in her submission relied on the cases ofFredrick Ngari Muchira & 99 Others v. Pyrethrum Boardof Kenya Cause 16 of 2013 (unreported) and KPAWU v.James Finlay (K) Ltd Cause 24 of 2013 (unreported) andurged the Court to find in her favour. The 2 decisions thoughof a Court of equal jurisdiction and thus persuasive are notrelevant for this case. The first related to a redundancydeclared by the Pyrethrum Board while the second related tohospital services by James Finlay Ltd and the declaration ofredundancy affecting the Claimant’s members. As will beapparent in the decision I have reached, there is noredundancy claim that the Claimant can succeed in. 9.The Claimant was earning a sum of Kshs. 69,300/- a month.She agreed that she could be terminated on payment ofnotice or after a written 30 day notice prior to termination.She got none and would therefore be entitled to the paymentof a month’s salary in lieu of notice. If a redundancy is to bedeclared, the employer is required under Section 40(1)(b) tonotify the employee and the Labour Officer. There is noevidence that the Labour Officer was informed. The letterused the word redundancy but in effect was a letter ofsummary dismissal. The definition of “redundancy” under theEmployment Act is under Section 2. Section 2 defines it thus:-“redundancy” means the loss of employment, occupation, job orcareer by involuntary means through no fault of an employee,involving termination of employment at the initiative of theemployer, where the services of an employee are superfluous andthe practices commonly known as abolition of office, job oroccupation and loss of employment; 10.The Respondent services of the Claimant were notdeemed superfluous, indeed the letter identified the reasonfor the termination as poor performance as encapsulated inthe November appraisal. The termination was not an abolitionof office. The Respondent was therefore not required to notifythe Labour Officer. The Claimant conceded that the score inthe appraisal was below average. She avers that she wascoerced to sign the appraisal. That took place on 10thNovember 2011 and there is no record she protested theappraisal process or the coercion she alleges. I find that therewas just cause to terminate her services as a result of herpoor performance. 11.The Claimant is however entitled to the safeguards inthe contract and her terminal dues. She is entitled to theleave days earned, pay for days worked. Regarding theincrement, the Memo communicating the same was veryexplicit. The increment was upto a maximum of 8%. This means that the increment could be as little as 1% or as highas 8%. She got 3% and I would be out of order if I interferedwith the exercise of discretion by the Respondent in awardingthe increment. I would only do so if the Respondentcapriciously awarded the increase to the detriment of theClaimant. No evidence was led and no caprice has beendetected. As regards the balance of contract, there is nocompelling reason to find that the Claimant was entitled toserve the balance of the contract. Though she waspsychologically prepared to serve the entire contract, therewas no guarantee and the legitimate expectations she hadhave to be tempered by the reality which is inherent in thefreedom to contract between the parties. She would thereforenot be entitled to recover under this head. She proved asubstantial part of her claim and is entitled to recover fromthe Respondent in terms of this judgment. 12.In the final result, I enter judgment for the Claimant for:-a.1 month salary in lieu of notice – Kshs. 69,300/-b.Salary for days workedc.Leave pay for 21 days (69,300/30x21) Kshs. 48,510/-d.Leave allowance – Kshs. 34,650/-e. Costs of the suitIt is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 9 TH DAY OF JANUARY 2014****NZIOKI WA MAKAU****JUDGE**