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claimant in 2011 as a causal employee with duties to load and offload goods and he was paid per day for days worked. In 2013 the claimant left work in December, and failed to return. In January, 2014 the claimant was working for another company and was allocated work within the respondent business. During the claimant’s employment he would fail to report to work on various occasions, upon being summoned to explain he would keep his phone off. 10. The claimant was paid the due legal wage for a causal employee and for the duties he was undertaking. There is a master roll to confirm the payments made. The claimant was not at work on full time basis and whenever he did, the respondent paid the due wage for the day. 11. Mr Patel also testified that the claimant was sent for work in Nairobi but failed to report back to work. Despite being called to explain himself, he did not attend and started working for a neighbour of the respondent doing similar duties. The respondent was incurring losses in the business and the claimant failed to give an account. Staff would be stealing and fail to give account and file claims in court seeking damages and compensation. Several cases of robbery have been reported to the police without any action being taken. This has led the respondent business to near closure. 12. There was no underpayment as claimed; the claimant absconded duty and notice pay is not due. 13. At the close of the hearing, both parties filed written submissions. 14. Part of the records submitted by the claimant to support his case is a contract of service with Chan Services and which commenced on 2 nd January, 2014. 15. The respondent has also filed work records with regard to the claimant and which sets out work attendance and payments made to him. 16. The claimant asserts that he was a turn boy and was underpaid in that role while the respondent asserted that the claimant was a causal employee and was allocated general duties and for that role he was paid over and above the minimum wage. 17. From the work records filed by the respondent and the evidence thereto from Mr Patel, the claimant had duties of loading and offloading goods and would be sent to Nairobi to undertake similar duties. The claimant was paid for his leave days, had a work benefit with remittances to the NHIF and NSSF and a net pay was made. There is also a leave salary paid to the claimant. From the records, it is apparent that the claimant was not at work during Sunday and I take this was his rest day. 18. Upon the claimant leaving the respondent’s employment, a report was lodged with the County Labour Office. The claimant is described as a General Labourer of the respondent from January, 2011 to May, 2015. 19. This being a report by the claimant and with conflicting information on the status of employment, the County Labour Officer being the first office where the claimant lodged his complaint, I take it the position he held was that of a General Employee of the respondent. 20. Where the respondent asserts that the claimant was a causal employee, and such causal employment continued for period over and above daily allocation of work and despite their being daily payments of wages, by application of section 37 of the Employment Act, 2007 the claimant was entitled to rights and benefits under the Act. To this end the respondent dully complied and ensured the claimant took a rest day, the claimant was paid for his leave days and his statutory remittances were effected. 21. As a general labourer, the claimant’s wage under the wage orders in 2011 was Kshs.298.15 and he was paid Kshs.250.00 per day and which is less 48.15 the minimum wage. However of this minimum wage due, the claimant had work benefits of leave pay, off day and statutory remittances. Quantified, the respondent paid a wage over and above the statutory minimum for each day for the period served. 22. The wage due in the period of the year 2012 being Kshs.335.40 and such quantified with the work benefits for a general labourer, the respondent paid over and above the legal minimum. This equally applied for the period of 2013 and for the time the claimant ceased employment with the respondent when the daily wage was Kshs.379.30. 23. I find no underpayment of the claimant. 24. Section 44(4) of the Employment Act, 2007 allows an employer to dismiss an employee summarily where the employee commits acts of gross misconduct. The notice due in such a case may be less and based on the circumstances of each case. 24. In this regard the claimant testified that he had been sent to Nairobi for work and when he returned he was called to the office and dismissed. I take this evidence with great caution as where the claimant testified that he was sent away for two days on 31st December, 2013 and upon return he was dismissed, such evidence is compromised by the

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annexure the claimant attached to his claim on the basis that on 2nd January, 2014 he was already in new employment. Where the claimant left work on 31st December, 2013 the fact of being sent away for two days places him on 2nd January, 2014. On such day he was already at work with a new employer. 25. Section 44 of the Employment Act, 2007 allows an employer to dispense with a hearing where circumstances of the same do not allow. The employer must however demonstrate the same. In this regard the respondent testified that efforts to call the claimant to work failed to bear fruit. The claimant’s wife was called and she too could not explain where the claimant was. See George Musamali versus G4S Security Services Kenya Ltd [2016] eKLR and where court held that once there is misconduct, the employer is not required to undertake procedures similar to a criminal trial. All what is expected is that the employee is invited to attend and given a reasonable and fair chance to explain himself. This is reiterated in the case of Joseph Onyango Asere versus Brookside Dairy Limited [2016] eKLR that the evidence collected on the shop floor I the best for the employer to rely upon in addressing any misconduct of an employee. 26. On this evidence, and the defence that the claimant absconded duty after 31 st December, 2013 and that when he was sent to Nairobi he failed to render accounts and was never seen at his place of work is correct. The claimant could not report back to his work station as he had already secured new employment. The claimant has submitted such evidence on his own volition. 27. On this basis, notice pay is not due to an employee who absconds duty, commences new employment with a new employer without notice to the former employer and when called to account for work undertaken with the former employer fails to do so. To award notice pay or compensation on this evidence would be to reward gross misconduct. Accordingly, the claims made must fail and are hereby dismissed. Each party to bear own costs. Delivered in open court at Nakuru this 30th day of July, 2018. M. MBARU JUDGE In the presence of: Court Assistants: Nancy & Martin ……………………………………………… ………………………………………………

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