Godfrey Ashiundu Shilibwa v Mediheal Group of Hospitals

4. The Claimant avers that in January 2024, the Respondent’s General Manager took the hospital keys from him (the Claimant). He further avers that the said manager stopped reporting to work thus preventing him (the Claimant) and other workers from accessing the hospital for purposes of reporting to work. 5. The Claimant asserts that by locking him out of the workplace, the Respondent effectively terminated his contract of service. He thus claims compensation for unfair termination of his contract of service. 6. The record shows that although the Respondent was served with summons to enter appearance, it neither entered appearance nor filed a defense. As such, the suit proceeded as an undefended cause. Analysis and Determination 7. The Claimant contends that he was an employee of the Respondent. He has tendered in evidence a document dated 17th May 2021 through which the Respondent revised his salary from 1st April 2021. Based on this document, the court is satisfied that the parties had an employment relationship. 8. The Claimant accuses the Respondent of unfairly terminating his contract of service by physically locking him and other workers out of their work stations. In law, if an employer: locks an employee out of the workplace; stops assigning the employee work; and fails to remunerate the employee his monthly salary, he will be deemed to have repudiated the ELRC CAUSE NO E577 OF 2024 2

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contract of service between the parties. In the premises, the employee is entitled to consider the contract as terminated. As such and having regard to the evidence on record, the court finds that the Respondent, through its actions and conduct, terminated the contract of service between the parties. 9. The record does not disclose the reasons why the Respondent discontinued the Claimant’s services. Similarly, there is no evidence to suggest that the Claimant was subjected to a disciplinary hearing or taken through a lawful redundancy process to validate termination of his contract. In the premises, the court finds that the Respondent unlawfully terminated the Claimant’s services. 10. The Claimant has contended that the Respondent stopped paying his salary from September 2023. He contends that this continued until January 2024 when he was locked out of the workplace. 11. The Respondent did not controvert this evidence. In the premises, the court is satisfied that the Claimant has established that the Respondent did not remunerate him for the months of September 2023, October 2023, November 2023, December 2023 and January 2024, 12. The Claimant stated that his monthly salary was Ksh.84,000.00. As such the accrued salary for the five months is Ksh. 420,000.00. Accordingly, the court enters ELRC CAUSE NO E577 OF 2024 3

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judgment for the Claimant for the sum of Ksh. 420,000.00 to cover accrued salary. 13. The Claimant’s contract having been unfairly terminated, he is entitled to compensation for unfair termination of his contract in terms of section 49 of the Employment Act. Accordingly, the court enters judgment for him for Ksh. 420,000.00 (which is equivalent to his salary for five months) being compensation for unfair termination of his contract of service. 14. The Claimant was entitled to notice to terminate his contract of service in terms of section 35 of the Employment Act. There is no evidence that the Respondent issued him with such notice. Accordingly and in terms of section 36 of the Act, the court awards him Ksh. 84,000.00 being one month’s salary in lieu of notice to terminate his contract of service. 15. The court awards the Claimant interest on the aforesaid amount at court rates from the date of this decision. 16. The court awards the Claimant costs of the suit. 17. The award is subject to the statutory deductions which were applicable when the contract between the parties was terminated. Summary of the Findings and Orders 18. After evaluating the evidence on record, the court makes the following findings and attendant orders:a) The court finds that the parties to the action had an employment relationship. ELRC CAUSE NO E577 OF 2024 4

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b) The court finds that the Respondent unlawfully terminated the aforesaid relationship. c) The court orders the Respondent to pay the Claimant the sum of Ksh. 420,000.00 being accrued salary for the months of September, October, November and December 2023 and January 2024. d) The court orders the Respondent to pay the Claimant compensation for unfair termination of his contract of service in the sum of Ksh. 420,000.00. e) The court awards the Claimant Ksh. 84,000.00 being one month’s salary in lieu of notice to terminate his contract of service. f) The court awards the Claimant interest on the aforesaid amounts at court rates from the date of this judgment. g) The court awards the Claimant costs of the case. h) The award to the Claimant is subject to the statutory deductions which were applicable when the contract between the parties was terminated. Dated, signed and delivered on the 8th day of October, 2026 B. O. M. MANANI JUDGE In the presence of: ELRC CAUSE NO E577 OF 2024 5

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…………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO E577 OF 2024 6

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