Automated Summary
Key Facts
Bentack Kilundo, employed by Schenker Limited from December 1985 to February 2010, was summarily dismissed without valid justification or proper hearing. The original award (July 2012) granted 3 months' salary in lieu of notice, 27 years of gratuity, and annual leave pay, but the review court found these awards breached the contract and law. The contract stipulated 1 month's notice, and the claimant was part of NSSF and a pension scheme, disqualifying gratuity under Section 35(5) of the Employment Act. The review court upheld 6 months' unfair dismissal compensation but adjusted notice pay to 1 month and set aside gratuity and leave awards. Total revised compensation was Kshs 546,814 plus interest.
Issues
- The gratuity award was invalidated as the claimant was a member of the National Social Security Fund and a pension scheme, making Section 35(5) inapplicable. The court's failure to address this contractual and statutory conflict led to the award being set aside.
- The award for payment in lieu of leave days was set aside due to the absence of any evidence presented to support the claim, violating the burden of proof requirements under the law.
- The court's award of 3 months' salary in lieu of notice was set aside and substituted with 1 month's salary, as the contract and Section 35(1)(c) of the Employment Act only provided for one month's salary in lieu of notice for employees paid at intervals of or exceeding one month.
Holdings
- The court found that the award of three (3) months' salary in lieu of notice was in breach of the contract and law, substituting it with one month's salary as per Section 35(1)(c) of the Employment Act.
- The gratuity award of Kshs.2,109,132/= was set aside because the contract did not provide for gratuity and the claimant was a member of NSSF and a pension fund, which excludes entitlement under Section 35(5) and 35(6) of the Employment Act.
- The six (6) months' salary compensation for loss of employment was retained as it was within the court's discretion under Section 49(1)(c) of the Employment Act and not found to breach any written law.
- The application to issue a certificate of service to the claimant was retained, as no legal or factual errors were identified in this aspect of the award.
- The award of annual leave days not taken was set aside due to lack of evidence supporting the claim, as the court determined the judgment provided no factual basis for this award.
Remedies
- Each party will meet its costs of this Application as no order of costs was made by the trial judge
- Interest on total payment of Kshs.546,814/= from 13th July, 2012
- 1 month's salary in lieu of notice substituted (Kshs.78,116/=)
- Application to issue certificate of service retained
- Award of Annual leave days set aside
- Gratuity award set aside
- 6 months' salary compensation retained (Kshs.468,698/=)
Monetary Damages
546814.00
Legal Principles
The court emphasized that the burden of proof lies with the party making the claim, requiring them to establish their case on a balance of probabilities. This principle was applied to set aside the award of gratuity and leave entitlements due to the absence of supporting evidence from the applicant.
Cited Statute
- Employment Act 2007
- Industrial Court Rules, 2010
- Industrial Court Act No.20 of 2011
Judge Name
Mathews N. Nduma
Passage Text
- The Award of the Court is reviewed to the extent that... the award of Gratuity is set aside. The Court finds that the Claimant was a member of National Social Security Fund and a Pension Fund by the employer, making the gratuity award contrary to written law and the contract of the parties.
- The Learned Judge made the three (3) months award not only in breach of the contract of service but also in breach of the law aforesaid. The award is accordingly set aside and substituted with a payment of one months' salary in lieu of notice.
- The court concluded that the Claimant/Respondent had established on a balance of probabilities that he was unfairly, wrongfully and unlawfully summarily terminated. The six (6) months' salary compensation for unlawful dismissal was within the court's discretion under Section 49(1)(c) of the Employment Act 2007.