Yobesh Simeon Nyamarika v China Road & Bridge Corporation (Kenya) (Cause 1762 of 2013) (Employment and Labour) [2016] KEELRC 70 (KLR)
The bottom line
#A Kenyan court ordered China Road & Bridge Corporation to pay a worker Kshs. 365,488 after finding his dismissal was designed to block his injury claim.
What this practically means
#Executive summary
#Key legal issues
#Applicable salary for purposes of the claim
The court adopted Kshs. 27,712 (the highest figure) as the Claimant's monthly salary because the employer failed to maintain a proper pay structure for a regular employee.
The Claimant was a regular employee entitled to a fixed monthly salary; the employer's hours-based pay method applicable to piece work could not apply to him. Since the employer's payroll gave varying gross figures and the employer bore the statutory duty under Section 20 of the Employment Act to provide itemised pay statements, the court adopted the highest figure claimed by the Claimant.
Lawfulness and fairness of the termination
The termination was substantively and procedurally unfair in breach of Sections 41 and 43 of the Employment Act.
The Respondent gave shifting reasons: redundancy in its Memorandum of Reply, misconduct in final submissions, and the witness claimed the Claimant asked to be terminated. The court found the inconsistencies fatal and inclined to believe the termination was intended to forestall the Claimant's Work Injury Benefits Act claim, an unfair labour practice. No valid redundancy procedure or misconduct hearing was demonstrated.
Deduction of union dues/agency fees
The deductions were unauthorised because no ministerial order authorising agency fees was produced, and all sums deducted are recoverable.
Although the Respondent relied on a three-judge bench decision holding that unionisable employees benefiting from a CBA should pay agency fees under Section 49(1) of the Labour Relations Act, the Respondent omitted the prerequisite ministerial order granted to the trade union. Without evidence of such an order the deductions were unauthorised.
Unremitted salaries and unpaid salary months
The claim for unremitted salaries succeeded as did claims for November 2012 and July 2013 salary; medical refund and severance pay failed for want of proof.
A discrepancy between payslip amounts and bank deposits emerged; the Respondent offered only a general statement about loan obligations without evidence. Employee wages are protected and the employer had to make amends. With no evidence of payment for November 2012 and July 2013, those claims also succeeded, with July limited to 16 days worked.
Legal principles established
#- The employer bears responsibility for preparing and providing an itemised pay statement; where the employer fails to establish the correct salary, the court may adopt the employee's stated figure.
- Piece-work or hours-based pay calculation cannot be applied to a regular employee.
- Inconsistent grounds for termination (redundancy vs misconduct) undermine the employer's case and render termination unfair where sections 41 and 43 of the Employment Act are breached.
- Levying of agency fees requires a ministerial order granted to the relevant trade union; absent such order, deductions are unauthorised and recoverable.
- An employer who allows an employee's salary to disappear without explanation must make amends.
Court orders
#- 1.Award of Kshs. 365,488 comprising 6 months' salary in compensation, one month's salary in lieu of notice, refund of unlawful union dues deductions, unremitted salaries, salary for November 2012, salary for 16 days worked in July 2013 and prorata leave pay
- 2.Respondent directed to reissue the Claimant's certificate of service in accordance with Section 51(1) of the Employment Act
- 3.Claimant awarded costs of the case
- 4.Award to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment dispute under the Employment Act and Work Injury Benefits Act context)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Kimunyu v Highlands Mineral Water Company Limited [2016] KEELRC 778 (KLR)[2016] KEELRC 778 (KLR)15 Aug 2016followed
Cite this brief
#Cite this brief
Caselaw, "Yobesh Simeon Nyamarika v China Road & Bridge Corporation (Kenya) (Cause 1762 of 2013) (Employment and Labour) [2016] KEELRC 70 (KLR)", Case Analysis (2016). Cause No 1762 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/70/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.