Mombasa court awards security guard Sh1,200 after four-year court battle

Labour and Employment Relations Court judge Byram Ongaya. FILE PHOTO | NATION MEDIA GROUP

Picture this; you have lost your job, move to court for legal redress then after four years of a legal battle, you end up with a paltry Sh1, 200 as compensation.

Mr Joel Tipapa Nolpoor has found himself in this situation after a Mombasa court’s judgment that has left him pondering his next move.

When he filed his case before Employment and Labour Relation’s Court in 2019, his expectations were that at the end he would walk home with an amount not less than Sh308, 652.

He had done his own calculations and was waiting eagerly for the judgment date perhaps with an expectation that his financial status would improve once the case is concluded.

In his court documents, he asked for the judge to find that his employment was illegally terminated and, therefore, he was entitled to compensation.

Mr Nolpoor asked to be paid Sh35, 145.80 one-month salary in lieu of termination notice and annual leave for one year, Sh60, 874 for underpayment of wages, service gratuity at 10 percent of the basic pay equivalent to Sh1757.20.

His list of what he wanted compensation for did not end there.

He also asked for a further twelve months‘s salary compensation for unlawful termination at Sh210, 874 and a further declaration that his sacking was unlawful.

Kenya Union of Domestic, Hotels Educational Institutions and Hospital Workers sued St. Bakhita Girls Rescue Home on behalf of Mr Nolpoor.

Mr Nolpoor’s case was that the institution employed him as a day security guard on June 6, 2018.

His employment was then terminated after working for a year. He claimed the termination was done without a valid reason.

According to him, he never received any warning and that there was no adverse warning during the period in which he was employed.

“On May 10, 2019, the respondent issued a new letter of employment for same one[1]year tenure but omitted the gratuity in the earlier letter,” he told Justice Byram Ongaya

He further testified that he had applied for renewal of the contract but which was declined.  Court records show the plaintiff left employment on May 31, 2019 upon lapsing of the contract.

In its response, the institution denied the claimant’s allegations and claims and prayed that the suit be dismissed with costs.

Ms Mercy Shiundu testified on behalf of the defendants denying any wrongdoing as claimed by the plaintiff.

It emerged during the hearing of this case that the plaintiff was paid a further Sh3, 000 per month for the extra duties of milking cows.

The further mutual evidence was that the grievant was initially employed for a term of one year.

After listening to the two sides, Justice Ongaya noted that the plaintiff’s contract term lapsed and there was termination by effluxion of the contractual term.

The judge further noted that Mr Nolpoor’s alleged unfair termination was misguided.

“The prayer for declaration of unfair termination and compensation are declined,” he said.

The judge further ruled that the contract having been for a fixed tenure of one year, the claim for pay in lieu of termination notice could not be allowed.

Clause 13 (b) of the contract specifically provided that the contract was terminable at the end of every contractual period without notice and if either party did not wish to renew.

“The Court finds that parties were bound accordingly. The court further finds that the claims for under payment and house allowance were unjustified,” the Judge said.

The court found that the man had misrepresented the facts while claiming for payment. For instance, the court found that the evidence was that he was paid house allowance and while pleading that he earned Sh9 000.00 per month, the evidence was otherwise.

The court also noted that the claimant did not also specifically plead the relevant minimum wage order applicable and how the computed was thereby arrived at.

“The claimant has failed to do so and the claims and prayers in that regard will fail. In conclusion judgment is hereby entered for the claimant against the respondent for payment of Sh1, 200,” said the judge.

The court has ordered the institution to issue the claimant with a certificate of service per section 51 of the Employment Act, 2007.

“Looking at parties’ margins of success, each party bears its own costs of the suit,” the judge said.

The institution is required to settle the amount by May 2, failing interest to run thereon at court rates from the date of filing the suit until full payment.

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