[2018] KEELRC 2531 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET

CAUSE NO. 33 OF 2017

BOAZ ISICHE MUTEKWA CLAIMANT

v

AMPATH (Moi Teaching & Referral

Hospital) RESPONDENT

JUDGMENT

1. Boaz Isiche Mutekwa (Claimant) was initially offered employment by Ampath (Respondent) through a letter dated 25 October 2006 as a driver. The Contract was for 1 year renewable.

2. The contract was renewed several times and the last contract was to run from 1 April 2016 to 31 March 2017.

3. On 15 August 2016, the Respondent issued to the Claimant a suspension/show cause notice and the reasons given for the suspension were that on 6th June, 2016 West Field Motors – Kitale with your permission replaced the radiator of vehicle registration KBT 141 M (Toyota Prado) without following the required and acceptable procedures as laid down by the transport standard operating procedures which requires that the Transport department facilitates in the procuring of service from the Vendor West Field Motors. Subsequently, you chose to deliberately delay reporting the matter to your immediate supervisor until the same was communicated to the Transport Manager by West Field Motors.

4. The suspension/show cause notice requested the Claimant to make written representations within 7 days.

5. The Claimant responded to the show cause through a letter dated 22 August 2016.

6. On 30 September 2016, the Respondent’s Disciplinary Committee met and recommended that the Claimant be dismissed summarily.

7. On 31 October 2016, the Respondent summarily dismissed the Claimant and the Claimant moved Court on 27 April 2017 and stating the Issues in Dispute as

a) Whether the Claimant was unlawfully, unprocedurally and unfairly terminated from employment by the Respondent;

b) Whether the reason given by the Respondent for termination of the Claimant amounts to a fair reason;

c) Whether the Claimant is entitled to compensation for unlawful, unprocedural and unfair termination from the employment as prayed for in this Memorandum of Claim;

d) Whether the Claimant is entitled to an award of a certificate of service;

e) Who should pay costs and interests of the suit?

8. The Respondent filed a Reply to Statement of Claim, witness statements and documents on 25 May 2017 and this prompted the Claimant to file a Reply on 24 July 2017.

9. The Cause was heard on 26 September 2017 when the Claimant testified and on 21 November 2017 when the Respondent’s 3 witnesses testified.

10. After close of hearing, the parties agreed that judgment would be delivered in Nairobi as the judge was on transfer.

11. The Claimant filed his submissions on 15 December 2017 while the Respondent filed its submissions on 18 December 2017.

12. The Court has considered the pleadings, evidence and submissions and will evaluate the case in terms of the Issuesas framed by the Claimant and adopted on 24 July 2017.

Whether there was unfair dismissal

Procedural fairness

13. The Claimant was served with a show cause notice outlining the allegations he was to confront. He was given 7 days to respond in writing and he did.

14. However, the Claimant contends that the dismissal was procedurally unfair because he was not invited to the disciplinary hearings held on 23 September 2016 and 30 September 2016, and thus not afforded an opportunity to make representations.

15. The Claimant admitted that he was invited through a short text message to attend a disciplinary hearing on 28 September 2016 but the hearing aborted.

16. The Respondent’s Transport Manager told the Court that Claimant was present during the hearing on 30 September 2016. She was the complainant against the Claimant and attended the hearing in that capacity.

17. The Respondent’s third witness, a Human Resource Officer on his part testified that he invited the Claimant to a disciplinary hearing set for 28 September 2016 through a short text message but that he later called the Claimant to reschedule the hearing to 30 September 2016 and that the Claimant attended the hearing. Minutes of the hearing were produced.

18. The witness stated that the meeting on 23 September 2016 was not a disciplinary hearing but a house keeping meeting to prepare for the hearing.

19. The minutes of the hearing held on 30 September 2016 do not show the Claimant as having been present or in attendance.

20. However, some portions of the minutes suggest that the Claimant was present and made representations.

21. The process envisaged by section 41 of the Employment Act, 2007 may be conducted through correspondence, through face to face hearing or a combination of both.

22. In the case at hand, the Claimant was afforded an opportunity to make written representations, which he did. He did not suggest that the time for making the written representations was not sufficient or that there were records he could not access to enable him make adequate written representations.

23. The Claimant has equally not demonstrated that he suffered any bias or injustice by failing to attend the face to face hearing, if at all, on 30 September 2016 or that contractually, he was entitled to a face to face hearing.

24. In the view of the Court, the Respondent was in substantial compliance with the statutory procedural fairness requirements.

Substantive fairness

25. Sections 43 and 45 of the Employment Act, 2007 have placed upon employers the burden of proving the reasons for a dismissal, and that the reasons are valid and fair.

26. In an attempt to discharge the burden, the Respondent’s second witness, the Transport Manager produced its Transport Fleet Management Policies, which she stated the Claimant was familiar with as he had served as a driver for about 10 years (clause 4 thereof is material).

27. The Policies required a driver (Claimant) to fill a Service Request Form either in case of normal service or repair service and obtain authorisations/approvals in advance before taking a vehicle to the service provider(s).

28. The witness produced previous Service Request Forms filled by the Claimant.

29. According to the witness, the Claimant failed to follow the procedures before taking vehicle KBT 141M for replacement of a radiator on 6 June 2016 and that he only learnt of the replacement of the radiator after receiving an email request from the service provider seeking a go ahead to dismantle the engine of the vehicle.

30. The witness stated that the Claimant was expected get her approval as the Transport Manager for the repairs in advance but he failed to seek the approval.

31. The Respondent’s first witness, a Manager with the Service provider on his part testified that the radiator was replaced on the insistence of the Claimant who asserted that the replacement was urgent as the vehicle was needed for other upcoming assignments.

32. Although this witness was not forthcoming, his testimony that there were no Service Request Form was not controverted and because it is the Claimant who drove the vehicle for repairs, the Court will believe that part of the testimony.

33. Even accepting that there was urgency in repairing the vehicle, there was no explanation from the Claimant why he would drive a vehicle all the way to Kitale for repairs without taking a few minutes to fill up the requisite form before embarking on the journey.

34. The Claimant did not suggest that the Transport Manager or the In charge were not available to approve or authorise the replacement of the radiator.

35. In the view of the Court, the Respondent has proved not only the reason for dismissing the Claimant, but that the reasons were valid and fair as the Claimant flouted the Transport Fleet Management Policies.

Appropriate remedies

Pay in lieu of notice

36. Considering that this was a case of gross misconduct and that the Claimant was taken through a disciplinary process, the Court is of the view that pay in lieu of notice is not appropriate.

Compensation

37. With conclusion that the summary dismissal was fair, compensation in terms of section 49(1)(c) of the Employment Act, 2007 is not available to the Claimant.

Salary for September and October 2016

38. The Claimant is entitled as of right to earned wages up to date of dismissal as no contractual or legal authority for the suspension was demonstrated (Claimant was on a monthly salary of Kshs 33,207/-).

Service pay/gratuity

39. The head of claim was abandoned because the Claimant was a contributing member of the National Social Security Fund.

Pro rataleave

40. The Respondent admitted that the Claimant had not taken leave for 2016 and therefore the Court finds he is entitled to pro rata leave (computations by Claimant were not controverted).

Overtime

41. The Respondent’s explanation that the Claimant was getting paid extraneous allowance in lieu of overtime was not controverted. The relief is declined.

Certificate of Service

42. A certificate of service is a statutory right and the Respondent should issue one to the Claimant within 14 days.

Conclusion and Orders

43. The Court finds and holds that the summary dismissal of the Claimant was fair and dismisses the heads of relief depended on it, but nevertheless awards the Claimant

(a) Unpaid wages Kshs 66,414/-

(b) Pro rata leave Kshs 19,370/75

TOTAL Kshs 85,784/75

44. Claimant to have costs on half scale having succeeded only partially.

45. This file to be transmitted back to Eldoret after delivery of this judgment.

Delivered, dated and signed in Nairobi on this 24th day of January 2018.

Radido Stephen

Judge

Appearances

For Claimant Mr. Kirwa instructed by Mwakio, Kirwa & Co. Advocates

For Respondent Ms. Cheptinga instructed by Cheptinga & Co. Advocates

Court Assistants Etyang/Martin