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ELRCPartially AllowedCause No 747 of 2014· [2017] KEELRC 1895 (KLR)

Lucas Adam Laban v Ukwala Supermarkets (Nakuru) Ltd [2017] KEELRC 1895 (KLR)

Employment and Labour Relations Court
27 January 2017
RSRadido Stephen
1,149 words in judgment
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The bottom line

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A Nakuru court ruled Ukwala Supermarkets unfairly fired a worker and must pay him notice and compensation, but rejected his overtime and service pay claims.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nakuru (Radido Stephen, Judge) determined a claim by Lucas Adam Laban against Ukwala Supermarkets (Nakuru) Ltd arising from his employment from 2006 until separation in September 2014. The Court framed five questions: the Claimant's designation, overtime, unfair termination, NSSF remittances, and service charge/remedies. On designation, in the absence of a formal contract and because the Claimant did not disclose his day-to-day duties, the Court found he was more probably a general worker rather than a Shop Assistant. The overtime claim failed because pay slips produced by the Respondent from 2009 to 2014 showed overtime was paid, and the Claimant did not identify the applicable Regulation of Wages Order. The NSSF claim also failed, a Provisional Member Statement of Account showing contributions were remitted. On termination, the Respondent's pleaded case of abscondment conflicted with its witness's testimony of voluntary departure; the Court preferred the Claimant's version that he was dismissed on 1 September 2014 and, absent compliance with sections 35 and 41 of the Employment Act, held the termination unfair, noting that even abscondment would have required section 44(4) read with section 41(2) compliance. The service charge claim failed for want of evidential, contractual or legal basis. The Court awarded one month's pay in lieu of notice (Kshs 9,024) and compensation of 10 months' gross wages (Kshs 172,330) considering about 9 years of service, dismissed other heads of relief, and awarded costs to the Claimant. Judgment delivered on 27 January 2017 in Nakuru.

Key legal issues

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01

Designation of the Claimant's employment

Holding

Claimant was a general worker, not a Shop Assistant

Reasoning

There was no formal contract stating designation. The Claimant did not disclose his day-to-day duties, which would have assisted the Court to determine occupation. Applying the statutory definition of Shop Assistant in the Regulation of Wages (Wholesale and Retail Distributive Trades) Order, the Court found it more probable the Claimant was a general worker.

p. 2
02

Overtime

Holding

Overtime claim failed; pay slips showed overtime was paid

Reasoning

The Claimant alleged unpaid overtime but did not identify the applicable Regulation of Wages Order. The Respondent's witness produced pay slips from 2009 to 2014 showing overtime payments, on which basis the Court found any overtime worked was paid.

p. 2
03

Unfair termination

Holding

Termination was unfair

Reasoning

The Respondent's pleaded case (abscondment) was inconsistent with testimony (voluntary departure). The Court preferred the Claimant's version that he was dismissed on 1 September 2014, shortly before a demand letter was sent. There was no suggestion of compliance with sections 35 and 41 of the Employment Act, warranting a verdict of unfair termination; even abscondment would have required section 44(4) read with section 41(2) compliance.

p. 2
04

NSSF contributions

Holding

Contributions were remitted

Reasoning

Despite the Claimant's plea, the Respondent produced a Provisional Member Statement of Account for 2005 to 2014 showing monthly contributions were remitted to the National Social Security Fund.

p. 2
05

Remedies

Holding

One month notice pay and 10 months' compensation awarded

Reasoning

Upon finding unfair termination, the Claimant was entitled to one month's pay in lieu of notice. Compensation under section 49(4) is discretionary; considering about 9 years of service, the Court awarded the equivalent of 10 months gross wages.

p. 3

Legal principles established

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  • Termination without compliance with sections 35 and 41 of the Employment Act is unfair
  • An NSSF contributor is not entitled to service pay under section 35(5) and (6) of the Employment Act

Court orders

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  1. 1.Declaration that the employment of the Claimant was unfairly terminated
  2. 2.Respondent to pay 1 month pay in lieu of notice of Kshs 9,024/-
  3. 3.Compensation equivalent of 10 months gross wages of Kshs 172,330/-
  4. 4.Other heads of relief dismissed
  5. 5.Claimant to have costs

Authorities

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Legislation

  • Employment Act, 2007section 10
  • Employment Act, 2007sections 35 and 41
  • Employment Act, 2007section 44(4) read with section 41(2)
  • Employment Act, 2007section 49(4)
  • Employment Act, 2007section 35(5) and (6)
  • Regulation of Wages (Wholesale and Retail Distributive Trades) Orderdefinition of Shop Assistant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute over termination and employment benefits)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lucas Adam Laban v Ukwala Supermarkets (Nakuru) Ltd [2017] KEELRC 1895 (KLR)", Case Analysis (2017). Cause No 747 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1895/eng@2017-01-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.