[2014] KEELRC 1426 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAKURU

CAUSE NO. 318 OF 2014

AMOS KENNEDY KOWUOR................................................ CLAIMANT

v

SAFARICOM LTD................................................................RESPONDENT

JUDGMENT

Amos Kennedy Kowuor, (Claimant) instituted legal proceedings against Safaricom Limited (Respondent) on 21 July 2014 alleging unlawful termination and seeking pay in lieu of notice, compensation, service pay, accrued leave and costs.

According to an affidavit of service sworn by Kenneth Waithaka and filed in Court on 18 September 2014, the Respondent was served and it acknowledged receipt of Notice of Summons and copy of Memorandum of Claim on 4 August 2014. The Respondent should have therefore filed a Response on or before 19 August 2014.

When the Cause was mentioned on 18 September 2014, Ongaya J ordered that the Cause proceed to hearing on 29 October 2014, and directed the Claimant to serve a hearing notice upon the Respondent.

The Claimant served a hearing notice upon the Respondent on 17 October 2014, and the same was acknowledged through an official stamp, according to an affidavit of service filed in Court on 28 October 2014.

The Respondent filed a Memorandum of Appearance on 29 October 2014 through the firm of Ongweny & Moibi Advocates. This was on the morning of the hearing.

Mr. Mugambi who held brief for Mr. Weya for the Respondent sought an adjournment on the ground that the firm of Ongweny & Moibi had just been instructed. The application for adjournment was opposed and the Court declined to adjourn the hearing for reasons which are on record.

Claimant’s case

The Claimant testified. He stated that he was appointed by the Respondent as a Customer Experience Executive through a letter dated 17 September 2013 (Exh 1), and that prior to that he had been engaged by Sheer Logic Ltd as a Customer Experience Executive in 2010, and then deployed to the Respondent. He was based in Kitale.

On the separation, the Claimant stated that on 13 February 2014, while on off duty, he was called by his supervisor, Joseph Komen and instructed to go to the office. On reporting, he was given an air ticket and instructed to go to Nairobi and see a Mary Mugi.

The said Mary Mugi gave him a letter referenced Notice of Non Confirmation (Exh. 2), and when he consulted his Manager, a Mr. Kiprop (who was on leave), he advised him not to sign for it until he (Kiprop) consulted the Human Resource office. Mr. Kiprop later called to inform him the issue was for Human Resource and he did not want to get involved.

Later, the Claimant wrote an appeal, which he did through email (Exh 3) but there was no immediate response. Afterwards, Respondent’s representative exchanged emails with him on 21 March 2014, 31 March 2014 and 17 April 2014 after which he commenced legal proceedings.

The Claimant stated that he was not accorded a hearing prior to dismissal and was also not paid any terminal dues, though he was issued with a Certificate of Service (Exh 6).

The Claimant stated he wished to be reinstated without loss of any salaries or benefits.

The Claimant made brief oral submissions after close of his case.

Issues for determination

After considering the pleadings, testimony of the Claimant, documents presented and oral submissions, the Court has identified issues arising as, when relationship with Respondent began and who bears liability, whether the dismissal was unfair and if so, appropriate remedies.

Evaluation

Commencement and liability

The Certificate of Service issued to the Claimant indicated that he was an employee of the Respondent from 1st December 2010 to 14 February 2014.

In a letter dated 6 May 2014, and addressed to the Claimant’s Advocate (Exh. 5), the Respondent asserted that it employed the Claimant effective 1 October 2013 and not in 2010 and that previously he was employed by Sheer Logic Ltd. It was contended that the certificate of service was issued in error.

In his testimony, the Claimant stated that the Respondent employed him through a letter dated 17 September 2013, and that previously he was employed by Sheer Logic Ltd. It appears that the Respondent had an outsourcing agreement with Sheer Logic Ltd.

The Claimant however did not disclose enough about his relationship with Sheer Logic Ltd and its the nexus with the Respondent. No material was presented before Court that the Respondent would assume any employment liabilities on the side of Sheer Logic Ltd. Similarly, no statutory backing for the assumption of the liability was laid.

On the strength of the appointment letter, the Court finds that the Claimant’s formal employment relationship with the Respondent commenced on 1 October 2013.

The Respondent therefore cannot be liable for any dues prior to 1 October 2013.

Whether dismissal was unfair

Procedural fairness

Section 41 of the Employment Act, 2007 protects employees from procedurally unfair termination of service. If the termination is on one of the grounds of misconduct, poor performance or physical incapacity, an employer is under a statutory obligation to inform the employee of the reasons for contemplated termination and to hear the representations made by the employee.

When an employee challenges the termination, an employer should satisfy the Court that it complied with the procedural fairness safeguards provided for in section 41 of the Employment Act, 2007.

There is nothing presented before Court to show that the Respondent complied with the section. The letter referenced Notice of Non-Confirmationdid not make any reference to asking the Claimant to make any representations or show cause why disciplinary action should not be taken against him.

Further, the appointment letter provided for one month notice of termination though with an exception for summary dismissal for justified reasons.

Employers of more than 50 employees should also have disciplinary policies in place. It is not clear whether the Respondent had in place such policies and whether the policy was followed.

The Court finds that the summary dismissal of the Claimant was procedurally unfair. With this conclusion, it is not necessary for the Court to examine the reasons for the dismissal and whether they were valid and fair reasons. A dismissal must pass both the procedural fairness test and substantive fairness test independently of each other.

Appropriate relief

Reinstatement

The Employment Act, 2007 has given statutory underpinning to the common law rule that specific performance should not be granted in contracts of service, unless there are exceptional circumstances.

The Claimant did not address the Court on whether exceptional circumstances existed to warrant a departure from the general rule. This head of relief is declined.

One month pay in lieu of Notice

Pursuant to section 35(1)(c) of the Employment Act, 2007 and the finding that the dismissal was procedurally unfair, the Claimant has made a case for an award of one month pay in lieu of notice.

The Claimant’s appointment letter had provided for a basic monthly pay of Kshs 50,000/- and the Court would award him the same amount as one month pay in lieu of notice.

Service pay

The Claimant sought Kshs 150,000/- being the equivalent of three years service pay.

The Court has found the formal employment relationship between the parties herein commenced on 1 October 2013. It terminated on 14 February 2014 (after about 5 months).

This period is too short to make an award of service pay, but the Court will consider it as a factor in awarding compensation.

Accrued leave

The Claimant pleaded entitlement to accrued leave pay for 3 years. But in his testimony, he did not make any reference to accrued leave. This head of relief is declined because no evidentiary basis was laid for it.

Compensation

Compensation is one of the primary remedies for unfair termination. It is a discretionary remedy. But a fettered discretion.

The Claimant served the Respondent for a very short time (5 months). Considering the length of service and failure to award service pay, the Court would award him the equivalent of one month gross wages as compensation. The same is assessed at Kshs 50,000/-.

Conclusion and Orders

The Court finds and holds that the summary dismissal of the Claimant was procedurally unfair and awards him and orders the Respondent to pay him

One month pay in lieu of Notice Kshs 50,000/-

One month wage as compensation Kshs 50,000/-

TOTAL Kshs 100,000/-

The Claimant to have costs of the Cause assessed at Kshs 35,000/-.

Delivered, dated and signed in open Court in Nakuru on this 28th day of November 2014.

Radido Stephen

Judge

Appearances

For Claimant Mr. Odhiambo instructed by Cheptumo & Co. Advocates

For Respondent Ongweny & Moibi, Advocates (filed Appearance but no Response/did not participate in the hearing)