Robinson Mutembei v Akiba School [2013] KEELRC 611 (KLR)

The termination letter referred to verbal warnings and directive memos, but none of the Respondent's three witnesses mentioned the warnings and no memos were in the documents bundle. The letter did not refer to any hearing. The grounds of poor co-ordination, lack of rapport and failure to respect responsibilities were non-specific. The loss of equipment had been surcharged in 2009, making the 2011 dismissal a double jeopardy and punishment after an inordinate lapse of about two years, contrary to Sections 41 and 45 of the Employment Act.

The Respondent paid Kshs.12,000 in service pay across 2008-2010 in small instalments. The court held service pay should be based on the last salary for the whole period and, using the statutory minimum wage for a heavy commercial vehicle driver of Kshs.15,216, computed service pay at Kshs.22,824 (15,216 x 15 ÷ 3), awarding the difference of Kshs.10,824.

Both parties confirmed the Claimant worked on average from 6.30 a.m. to 6.30 p.m., doing gate keeping during those hours - about 72 hours a week instead of the statutory 52 under the Regulation of Wages (General) Order. The court computed his hourly rate from the minimum wage and awarded overtime for one year only, treating the other two years as covering periods when he was off duty, on trips or on leave.

The Regulation of Wages (General) Order entitles an employee to travelling allowance when working outside the normal duty station. RW1 and RW2 confirmed the Claimant was never paid travelling allowance, and the Respondent did not contest that he was on duty away from his duty station on the dates mentioned. The court found the claim proved and awarded Kshs.21,000 as claimed.

There was no evidence the Claimant was asked to explain the loss of the jack and spanner or that he failed to give a reasonable explanation, and the Respondent did not deny recovering the Kshs.10,000 from his salary. The Kshs.7,000 van remittance deducted from terminal dues was merely reflected as 'lost equipments' with no particulars. Deductions are only permissible under Section 19 of the Employment Act.

Section 31 of the Employment Act requires an employer to provide accommodation or a reasonable house allowance, but a consolidated wage may suffice. Comparing the Claimant's consolidated salary with the minimum wage for a heavy commercial vehicle driver inclusive of 15% house allowance across the three periods of employment, the court computed total underpayments of Kshs.256,709.25 and awarded that sum.

The Claimant sought the maximum 12 months' salary compensation of Kshs.102,000. Considering his service of just under 3 years, the court found 3 months' salary reasonable, computed at Kshs.17,498.40 per month (the minimum consolidated wage for a heavy commercial driver), awarding Kshs.52,495.20.

Section 51 of the Employment Act requires every employer to issue a certificate of service to any employee who has served more than 4 weeks. The court directed the Respondent to issue the certificate to the Claimant.