Caroline Wairimu & 61 others v Emco Billets and Steel Limited [2018] KEELRC 2525 (KLR)

25. KIMULI MARTIN WAMBUA 26. BENARD HUNJA ISAIAH KAMAU 27. WADANDA OLUOCH 28. NICHOLAS SIJENYI OMONDI 29. BENSON AKOYO ETINDI 30. HERBON MURUNGA WATAKA 31. NAFTARY MWANU GITWARA 32. ALBERT MORARA RAMBEKA 33. JAMES KARINA NJUGUNA 34. DENIS MBOGHO MWAVISWA 35. ISAAC BOSIRE KERAMA 36. SAYYID ODHIAMBO ONYANGO 37. DERICK KIMATHI MUGAMBI 38. JOSEPH MAINA 39. WAKINGO PETER OUMA 40. GODFREY JUMA NYONGESA 41. HENRY ANDERE AKHABOCHI 42. NELSON MWANIKA LUKHOLO 43. STEPHEN TUCHORA MWANGI 44. DAVID BAKARI DENJE 45. PETER NGANGA MUNYUA 46. FRANCIS AKHONYA NETIA 47. ALFRED KUSINA MUYELA 48. PATRICK OKOTH OKONG’O 49. PETER MALOBA MUKWANA 50. JOHN ZADOCK OTSIMI 51. PETER OBELAI OLADI 52. NYAMANYA ABSOLOM

page 2 of 9

53. DENIS OINO 54. GOVEDI NAMUSASI VIDOLO 55. JULIUS OPIYO 56. WILSON IKOKHA 57. ROBERT MOGERE 58. JOSHUA AMOLLO 59. STEPHEN NGETHE N. 60. JOSEPHAT KARIUKI 61. THOMAS WANYERE 62. PATRICK NYONGESA.......................................CLAIMANTS VERSUS EMCO BILLETS AND STEEL LIMITED...........RESPONDENT JUDGEMENT 1. The Claimants filed the instant claim on 11th July, 2014, through the Firm of J. W. Wanjohi & Company Advocates seeking the following Orders:- a) A declaration that the summary dismissal was wrongful, unfair and discriminatory. b) Two (2) months salary in lieu of notice. c) Damages for severance pay equivalent of One (1) month salary for each year completed for each Claimant. d) Damages for unlawful termination equivalent of 12 months’ salary for each of the Claimant. e) Issuance of a certificate of service to each Claimant as per the Employment Act Section 51 f) Unpaid leave days 2. The Claimants aver that they were employed by the Respondent herein on diverse dates from 2008 until 8th May, 2013, when the Respondent affixed a notice on the gate that all employees were terminated. 3. The Claimants aver that they worked in various capacities with the Respondent Company that deals with steel manufacturing. It is further their averment that they worked for the Respondent diligently and faithfully without any record or incidence of misconduct until 8 th May, 2018, when the Respondent without any notice terminated the services of all the Claimants. 4. The Claimants further aver that they had tried to resolve the differences through the Ministry of Labour, Social Security and Services department of labour to no avail thus they proceeded to file the claim before this Court.

page 3 of 9

5. The Claimants aver that their dismissal was unlawful, oppressive, malicious, amounts to bad labour practice and therefore unconstitutional. 6. The Claimants further aver that at the time of their termination each of them was earning different wages as per attached schedules. 7. The Respondent in its Response to the Memorandum of Claim states that the Claimants were casual employees of the Respondent Company who worked depending on the availability of work save for the 1 st Claimant who worked on contractual basis. 8. The Respondent denied affixing any notice terminating the services of the Claimants and avers that the Claimants willingly and without any notice absconded their duties at the company. 9. The Respondent avers that on 13th May 2013 the Claimants ganged up at the Company’s gate and blocked other employees from gaining access into the premises. The Respondent further issued a notice dated 14 th May 2013 requiring all employees to report immediately failure to which their positions will be advertised. 10. The Respondent’s evidence is that the Claimants failed to report to work and the Company proceeded to advertise the positions on 15 th May 2013. 11. The Respondent confirms that a complaint was lodged by the Claimants herein at the Ministry of labour vide Reference Number ML/DLO/NBI/LAB 1. It was this meeting that the labour officer made his findings as indicated in the Response to the Memorandum of Claim. 12. The Respondent avers that the Claimant is not entitled to any of the reliefs prayed for in their Memorandum of Claim as they in fact absconded duty. They pray for the claim to be dismissed with costs. Evidence 13. One of the Claimants (Nicholas Ndungu Macharia CW1) gave evidence on his behalf and on behalf of 61 other Claimants. In his evidence, CW1 stated that he was employed by the Respondent with effect from 16 th September 2010 as a gas cutter. That he worked for the Respondent until 8th May 2013. 14. CW1 further avers that on 8th May 2013 he was on duty until about 10.20 am when the Respondent Human Resource Manager, John Njenga handed them a note to exit the company. It was CW1’s evidence that as the Claimants exited the Company, they saw a group of policemen, who guarded the premises till 9th May, 2013. 15. CW1 stated that they did return to the Respondent Company on 9 th May 2013 but the Claimants were unable to gain access into the Company premises as the policemen present asked them to leave. CW1 confirmed that they did leave and later reported the issue at the labour office. 16. CW1 confirmed that he was a member of NSSF and that the Respondent Company made provision for NSSF deductions from his monthly salary as evidenced in his payslip and as such he was an employee and not a casual as pleaded by the Respondent. 17. In cross-examination, CW1 stated that they did not receive any further communication from the Respondent Company asking the Claimants to report back to work or risk having their positions advertised for replacement. 18. CW1 urged the Court to allow the claim in terms of the prayers in the Memorandum of Claim.

page 4 of 9

19. The Respondent put up one witness one Mr. Joab Mwangi, Human Resource Manager at the Respondent Company, who stated in evidence that the Claimants were employed on diverse dates as casual labourers save for Claimant number 1 who was employed by the Respondent on contractual basis that was subject to renewal upon expiry. 20. That the Claimants herein absconded duties on 9 th May 2013 and that on the said date there was no police presence at the Respondent Company as alleged by the Claimants. 21. The Respondent urged the Court to dismiss the suit. Claimant’s Submissions 22. The Claimants submits that that they are entitled to the prayers as prayed in the Memorandum of claim. 23. It is the Claimants’ further submission that all the Claimants worked diligently for the Respondent for a period of between one and a half years to five years. It is further submitted that at the time of termination (8 th May 2013) the Respondent failed to follow the legal channels specifically Section 41 of the Employment Act, Section 15 (c) of the Labour Institutions Act 2007 and the Labour Laws of Kenya. 24. That the Claimants were indeed employed by the Respondent as they all worked at the Respondent Company daily without fail whose salaries were paid to their respective bank accounts and the Respondent remitted statutory payments through statutory bodies: NSSF, NHIF and PAYE (this reflected in the Bank statements produced in Court). 25. It is the Claimants’ submissions that in the circumstances the claim in its entirety be allowed with costs. Respondent’s submissions 26. It is submitted by the Respondent that the Claimants were not dismissed but instead all Claimants opted to abscond duties with no explanation and proper justification. The notice relied upon by the Claimants and produced in Court simply allowed all employees out on 8 th May 2013 as there was growing tension within the Company premises. 27. That given that the Claimants were not dismissed from employment they are not entitled to any of the remedies sought in the Memorandum of Claim and most particularly 12 months compensation. 28. The Respondent submits that given that CW1 confirmed that the Respondent had been paying NSSF and NHIF the Claimants are not entitled to severance pay. 29. The Respondent submits that all computations of amounts due to each individual Claimant ought to have been done as part of the Claimants’ pleadings so as to have an opportunity to address the same at the hearing. It was submitted that the schedule of payments be expunged from the Court record in the circumstances. The Respondent prays that the instant suit to be dismissed with costs. 30. I have examined all the evidence and submissions of all the parties. The issues for determination by this Court are as follows:- 1) Whether Claimant’s were casual employees of the Respondents. 2) If not, whether the Claimants were dismissed or they absconded from duty. 3) If the Claimants were dismissed, if due process was followed.

page 5 of 9

4) Whether the Claimants are entitled to the remedies sought. 31. On the 1st issue, the Respondents have submitted that all Claimants save for the 1 st Claimant were casual employees and worked when work was available. 32. The Claimants position is that they worked for Respondent between 1 ½ years to 5 years and were not casual employees. The Claimants averred that the Respondents would not have paid the monthly statutory dues such as NSSF and NHIF if they were casual employees. 33. Indeed the Claimants submitted their bank statutory indicating that they were paid salary every month. The statements produced in Court and NHIF statements also show constant remittances to their accounts by their employer Emco Billets and Steel Limited the Respondent herein. On the NSFF statements produced, the employer name is also indicated as Emco Billets and Steel Limited. 34. The Respondents did not provide any evidence to contradict this position that they indeed remitted NHIF and NSSF payment for the Claimants as alleged. They attached a list of employees they state are casual employees showing payments made and even remittances for NHIF, NSSF and PAYEE. 35. Section 37(1) of Employment Act 2007 states as follows:1) “Notwithstanding any provisions of this Act, where a casual employee a) Works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or b) Performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35 (1) (c) shall apply to that contract of service”. 36. The Claimants having worked continuously for over 1 year and having been paid by the Respondents on a monthly basis, though being referred to as casuals, they are not casual employees by virtue of the law and I therefore find that they were not casual workers but permanent and pensionable employees. 37. On the 2nd issue, the Respondent aver that the Claimants absconded duty and this forced them to dismiss them and advertise for their jobs. The “abscondment” is said to have occurred on 9.5.2013. The Respondents sought to rely on the minutes of the Ministry of Labour where parties attempted to reconcile their disputes (page 17 of Respondents’ documents). 38. Assuming that indeed the Claimants absconded duty due to the various complaints they had, then being permanent and pensionable employees as found in issue No.1 above, then they were still entitled to be due process as provided under Section 41 of Employment Act. 39. No notice was issued to them to show cause why they should not be dismissed for absconding duty. No disciplinary hearing was ever conducted against them and thus any action taken by the Respondent was against the laid down procedure. They were dismissed without a hearing. The notice posted by the Respondent on 14.5.2012 warned employees to report to work by 1 pm or be deemed to have deserted. On 15.5.2012, the Respondent advertised for the Claimants’ vacancies. 40. It is evident that the Notice of 14.5.2012 was not served upon the Claimants as it was pinned on the notice board and if the Claimants had absconded duty they could not have seen the said notice. They were therefore condemned unheard. 41. In the circumstances, I make a finding that the Claimants were dismissed unfairly and without following due process. This settles issue No.2 and 3 above.

page 6 of 9

42. Having found the dismissal unfair and unjustified, the only remedies the Claimants are entitled to are:- 1. 1 months’ salary in lieu of notice. 2. 6 months as compensation for unfair termination. 3. Totals on the above figures is as per the annexed addendum ‘A’. 4. The Respondent will pay costs of this suit plus interest at Court rates with effect from the date of this judgment. Dated and delivered in open Court this 10th day of December, 2018. HON. LADY JUSTICE HELLEN WASILWA JUDGE In the presence of: Oketch holding brief for Wangago for Respondent – Present Kamau holding brief for Wanjohi for Claimants – Present

page 7 of 9

ADDENDUM ‘A’ TO JUDGEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 Name of Claimant One Month’s Salary Six Months’ (Kshs) Compensation (Kshs) CAROLINE WAIRIMU FESTUS MWANACHILU MAKIO CYRUS MOGIRE OGWAYA SAMUEL SILIVAND MICHAEL OMONDI OWINO JACOB NGUI MUTUNGA SIMON WAMBUA MUSYOKA DUNCAN ZAKAYO MOREKA VINCENT GISORE BASWETI JOHNSTON NYANGOTO MOGARE JACKTON INGANGA M’BWANA NICHOLAS NDUNGU MACAHARIA EVANS BARASA WALWANDA HEZRON OUMA OREYO GODFREY ODUOR MUMBO DANIEL GICHUKI MUGI MUTORO M. JAMES LUDEMBEI GEORGE RICHARD KIARIE WAITHERERO JARED MASESE KEANA STEPHEN MATHENGE WAMAHIU SETRICK LUVAYO MUYONGA HARON ONCHIEKU OHURU CALEB ODHIAMBO OWUOR KIMULI MARTIN WAMBUA BENARD HUNJA ISAIAH KAMAU WADANDA OLUOCH NICHOLAS SIJENYI OMONDI BENSON AKOYO ETINDI HERBON MURUNGA WATAKA NAFTARY MWANU GITWARA ALBERT MORARA RAMBEKA JAMES KARINA NJUGUNA DENNIS MBOGHO MWAVISWA ISAAC BOSIRE KERAMA SAYYID ODHIAMBO ONYANGO DERICK KIMATHI MUGAMBI JOSEPH MAINA WAKINGO PETER OUMA GODFREY JUMA NYONGESA HENRY ANDERE AKHABOCHI NELSON MWANIKI LUKHOLO STEPHEN TUCHORA MWANGI DAVID BAKARI DENJE PETER NGANGA MUNYUA FRANCIS AKHONYA NETIA ALFRED KUSINA MUYELA PATRICK OKOTH OKONG’O PETER MALOBA MUKWANA JOHN ZADOCK OTSIMI PETER OBELAI OLADI NYAMANYA ABSOLOM DENIS OINO GOVEDI NAMUSASI VIDOLO JULIUS OPIYO WILSON IKOKHA ROBERT MOGERE 16,750 14,100 21,720 14,100 15,210 10,000 15,000 8,850 17,100 10,000 15,960 15,900 15,210 14,100 13,182 14,000 14,100 12,000 8,850 14,100 14,000 10,000 14,100 12,320 14,100 15,900 14,100 15,200 15,960 14,100 23,760 10,000 14,100 12,390 15,900 12,320 12,220 15,210 15,000 14,100 14,100 14,100 16,050 21,600 15,690 12,320 14,100 14,850 15,210 12,390 15,210 12,000 15,210 15,870 14,950 10,000 17,000 100,500 84,600 130,320 84,600 91,260 60,000 90,000 53,100 102,600 60,000 95,760 95,400 91,260 84,600 79,092 84,000 84,600 72,000 53,100 84,600 84,000 60,000 84,600 73,920 84,600 95,400 84,600 91,200 95,760 84,600 142,560 60,000 84,600 74,340 95,400 73,920 73,320 91,260 90,000 84,600 84,600 84,600 96,300 129,600 94,140 73,920 84,600 89,100 91,260 74,340 91,260 72,000 91,260 95,220 89,700 60,000 102,000 TOTALS (Kshs) 117,250 98,700 152,040 98,700 106,470 70,000 105,000 61,950 119,700 70,000 111,720 111,300 106,470 98,700 92,274 98,000 98,700 84,000 61,950 98,700 98,000 70,000 98,700 86,240 98,700 111,300 98,700 106,400 111,720 98,700 166,320 70,000 98,700 86,730 111,300 86,240 85,540 106,470 105,000 98,700 98,700 98,700 112,350 151,200 109,830 86,240 98,700 103,950 106,470 86,730 106,470 84,000 106,470 111,090 104,650 70,000 119,000

page 8 of 9

GRAND TOTAL Kshs. 6,191,234/= HON. LADY JUSTICE HELLEN WASILWA JUDGE

page 9 of 9