Jackson Mainga Mtungi v Shiva Carriers Limited [2021] eKLR

Key Facts

Issues

• The Court found the termination was not unfair in procedure or substance, as the claimant contributed to his dismissal through repeated misconduct and was given an opportunity to explain.
• The Court ruled the claims for overtime, rest days, and public holiday pay were an afterthought, as the claimant failed to invoke the agreed grievance procedure under clause 7.1 of the contract.
• The Court determined that the termination was based on gross misconduct under section 44(1) of the Employment Act, 2007, and clause 6.3 of the contract, rendering the prayer for notice payment invalid.
• The Court found the claimant was a member of NSSF per pay slips, making him ineligible for service pay under section 35 of the Employment Act.
• The Court awarded Kshs. 30,751.245 for accrued annual leave under section 28 of the Act and ordered 25% of costs paid to the claimant.

Holdings

• The claimant was found to be a member of NSSF per pay slips, disqualifying him from service pay under section 35 of the Employment Act. The prayer for service pay was unfounded.
• The respondent was ordered to pay 25% of the suit's costs to the claimant, reflecting the court's assessment of the claimant's margins of success.
• The termination was determined to be via summary dismissal on 10.06.2015 for gross misconduct, including negligence and recklessness on three consecutive days (15th, 16th, 18th May 2015) causing losses. The claimant failed to explain himself at the disciplinary meeting.
• Claims for unpaid overtime, rest days, public holidays, and house allowance were dismissed as no evidence of grievances raised during employment was provided. The consolidated pay and clause 7.1 of the contract were highlighted as binding terms.
• The claimant was awarded Kshs. 30,751.245 for accrued annual leave under section 28 of the Employment Act. The court confirmed the leave was not granted during employment.
• The respondent was not liable for compensation for unfair termination as the termination was lawful. The court emphasized the lack of unfairness in both procedure and substance.
• The court found that the parties were in a contract of service dated 06.01.2015, with the claimant earning Kshs. 25,382.00 and working 45 hours per week as a Heavy Commercial Driver in the Short Haulage Division.
• The claimant's prayer for a certificate of service was deemed superfluous as the certificate dated 29.06.2015 was already exhibited.
• The termination was not found to be unfair. The court noted the claimant's own admission to the misconduct, the fair procedural steps taken by the respondent (per section 45 of the Employment Act), and the alignment with sections 43, 45, and 47(5) of the Act.

Remedies

• The claimant was awarded Kshs. 30,751.245 for accrued annual leave under section 28 of the Employment Act, 2007.
• The respondent is ordered to pay 25% of the costs incurred by the claimant in the legal proceedings.

Monetary Damages

Legal Principles

• The Court applied provisions of the Employment Act, 2007 (sections 43, 45, 47(5)) to determine that the respondent's termination for gross misconduct was fair and lawful, and that the claimant's failure to invoke the agreed grievance procedure (clause 7.1) barred his claims for unpaid benefits.
• The Court emphasized that the claimant bore the burden to prove his claims, including unpaid terminal dues and entitlements, by providing evidence of grievances raised during employment as required by the contract. The failure to demonstrate compliance with the grievance procedure invalidated these claims.
• The Court applied the standard of proof to assess whether the claimant's allegations of unfair termination and unpaid benefits met the evidentiary threshold. The claimant's inability to present documents or witness testimony undermined his case.

Cited Statute

Judge Name

Passage Text

• The claimant has established that annual leave was not granted and is awarded Kshs. 30,751.245 for leave as prayed for.
• The claimant gave no evidence of ever invoking that clause... The Court finds that the prayers were an afterthought and falling outside the binding written terms.
• The Court finds that the claimant has confirmed that the reasons for termination existed and were justified... It was not unfair both in procedure and substance.