Kenya Union of Road Contractors & Civil Engineering Workers v Classic Terrazo Enterprises

b. The Respondent be ordered to pay the complainant his terminal and contractual dues amounting Kshs. 336,839.00. c. Costs of this claim and interest thereof at court rates d. Any other relief that this court may deem just and fit to grant. 2. The Respondent never filed any response upon service of the court process and the suit proceeded by formal proof on 4 th June 2026. Evidence 3. The Claimant called the grievant Eunice Mutindi Mutwita who testified as CW1 and adopted her statement dated 11 th October 2024. She also produced a bundle of supporting documents as exhibits. In brief her case was that the Respondent employed her as a labourer on 14 th December 2021 for a daily wage of Kshs. 450.00. Her place of work was at the Respondent’s site at Manyani along Mombasa Road. Her work terminated on 11 th November 2022 after her JUDGMENT ELRC CAUSE NO. E924 OF 2024 2

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transfer from Manyani to Rwoshotham Heights site in Parklands. 4. She contended that on 11th November 2022 her foreman Mr. Denis Nyagoti informed her that there was no more work and paid her for the days worked and asked her to leave the site. She then reported the matter to Claimant union which took up the issue with the employer. No agreement was reached and the matter was escalated to the Minister for Labour for conciliation. 5. The Respondent did not participate in the conciliation upon service but the Claimant made its submissions on behalf of the grievant. In the end the conciliator prepared his report dated 14th September 2023 in which he made finding that the Respondent was underpaying the grievant and not compensating her for the overtime worked. He further found that the Respondent terminated the grievant’s employment without following due process. 6. The conciliator then recommended that the Respondent pays the Claimant one-month salary in lieu of notice, alleged leave, salary underpayment s and over time worked. The JUDGMENT ELRC CAUSE NO. E924 OF 2024 3

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Respondent never paid the recommended award and the Claimant filed the instant suit. Submission 7. The Claimant submitted that the Respondent did not follow the right procedure before terminating the grievant’s employment and therefore the grievant deserves payment of the damages sought. For emphasis reliance was placed on the case of Corporative Bank of Kenya Limited v Banking Insurance Union (K) [2014] KECA 109 (KLR) where the Court of Appeal held that due process is a fundamental aspect for the rule of law. 8. It was further submitted that the Respondent has not participated in the proceedings herein and therefore it did not discharge the burden of proving the reason for the termination and fair procedure as required under section 41, 43 and 45 of the Employment Act. It was further argued that the procedure provided under clause 19 of the Building and Construction Order was not followed. For emphasis reliance was placed on Walter Ogal Aruro v Teachers Service JUDGMENT ELRC CAUSE NO. E924 OF 2024 4

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Commission [2013] eKLR, where the court held that for the termination to pass the fairness test, it must be shown that there was both substantive justification and procedural fairness. Analysis and determination 9. Having considered the uncontroverted pleadings, evidence and submission, there is no dispute that the grievant was employed by the Respondent as a labourer from December 2011 to November 2022 when her services were terminated on account of redundancy. The issues for determination are: a. Whether the termination was unfair and unlawful. b. Whether the reliefs sought are merited. Unfair termination 10. The Claimant’s evidence that the grievant was laid off on 11th November 2022 by her foreman has not been rebutted. The termination was not preceded by any notice as required JUDGMENT ELRC CAUSE NO. E924 OF 2024 5

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under section 40(1)(a) or even section 35(1) of the Employment Act. Also, no notice was served under clause 19 of the Building Construction Order. It follows that the termination was procedurally unfair. Section 40(1) of the Act provides that:“ (1)An employer shall not terminate a contract of service on account the employer complies of redundancy unless with the following conditions— (a) where the employee is a member of a trade union, the employer notifies the union to which the employee is officer in a charge member of the and the labour area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy; (b) where a trade an employee is union, JUDGMENT ELRC CAUSE NO. E924 OF 2024 not a member of the employer notifies 6

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the employee personally in writing and the labour officer; (c) the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy; (d) where there is in agreement between union setting out existence a collective an employer and terminal benefits a trade payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union; (e) the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash; (f)the employer has paid an employee declared redundant not less than one month's notice or one month's wages in lieu of notice; and JUDGMENT ELRC CAUSE NO. E924 OF 2024 7

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(g) the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service.” 11. The failure by the Respondent to follow the foregoing procedure or at least the procedure set out under section 35(1) of the Act and clause 19 of the sectoral order rendered the termination unfair within the meaning of section 45(2) of the Employment Act. The said section provides that:“ (2)A an employer is termination unfair if of employment by the employer fails to prove— (a)that the reason for the termination is valid; (b)that the reason for the termination is a fair reason—(i)related to the employees conduct, capacity or compatibility; or (ii)based on the operational requirements of the employer; and (c)that the employment was terminated in accordance with fair procedure.” JUDGMENT ELRC CAUSE NO. E924 OF 2024 8

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Reliefs 12. In view of the foregoing conclusion, I find that the Claimant is entitled to declaration that her employment was unlawfully and unfairly terminated within the meaning of section 45 of the Employment Act. 13. Based on the above finding the Claimant is entitled to reliefs under section 49(1) of the Act being salary in lieu of notice plus compensation for unfair termination. She was working in Nairobi when the termination was done. I award her Kshs. 19,109.00 as salary in lieu of notice being daily wage of Kshs. 731.50 x 26 as prayed. 14. As regards compensation for unfair termination, I award the Claimant two months’ salary noting that she worked for only one year and she never contributed to her termination through misconduct hence Kshs. 19,109 x 2 = Kshs. 38,218.00. 15. The claim for leave for 11 days was not rebutted by leave records, hence Kshs. 19,109 x 1.75 x 11/26 = Kshs. 14,148.00. JUDGMENT ELRC CAUSE NO. E924 OF 2024 9

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16. The claim for underpayment lacks particulars of how it was arrived at. There is also no evidence to show when the Claimant transferred from Manyani to Nairobi so as to compute the underpayment of salary. In the circumstances, I find that the claim for underpayment has not been proved on a balance of probability. 17. In conclusion, I enter judgment for the Claimant in the following terms:a. Declaration that the termination of Claimant’s employment was unfairly terminated. b. Award of the following: (i) Notice Kshs. 19,109.00 (ii) Compensation Kshs. 38,218.00 (iii) Leave Kshs. 14,148.00 Total Kshs. 71,475.00 c. The award is subject to statutory deductions. d. Claimant is awarded costs plus interest at court rates from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 29TH DAY OF SEPTEMBER, 2026. JUDGMENT ELRC CAUSE NO. E924 OF 2024 10

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ONESMUS MAKAU JUDGE Osicho for Claimant No appearance for Respondent JUDGMENT ELRC CAUSE NO. E924 OF 2024 11

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