[2018] KEELRC 1398 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 1318 OF 2013

CALEB ASIANGO ORIAGO......................................CLAIMANT

- VERSUS -

KENYATTA NATIONAL HOISPITAL..................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 19. 08. 2013 through M.M. Muriuki & Company Advocates. The claimant prayed for:

a) The claimant be paid amount he could have earned if he could not have been terminated unfairly till retirement.

b) Punitive damages.

c) A declaration that the termination of the contract between the claimant and the respondent is and remains unlawful, therefore, null and void and full reinstatement with back salary and full benefits.

d) Costs of the cause.

The respondent filed the statement of response on 18. 10. 2013 through Akide & Company Advocates. The respondent prayed that the suit be dismissed with costs.

It was not in dispute that the claimant was employed by the respondent on 05. 08. 1996 upon permanent and pensionable basis as a medical records assistant. The claimant testified that a workmate called him on a date in 2009 when the claimant was on his official off or rest day. The workmate requested the claimant to go to the place of work with a view of helping the workmate’s relative to resolve some issue at the hospital. The issue was to assist the relative to do clearance and the workmate in issue was called Charles Oriko. It was the claimant’s testimony that he accepted to go and assist Oriko’s relative who had earlier paid Kshs.4, 000. 00. Unfortunately the said Oriko’s relative had passed away and the payment receipts were needed for clearance for the body to be collected from the hospital by the relatives. The receipt being crucial, Kshs. 500. 00 was to be paid for a police abstract to get the receipt reprinted. The claimant testified that Oriko gave the claimant the Kshs. 500. 00 and the claimant got the receipt for Kshs.4, 000. 00 reprinted. At the billing office it was disclosed that Oriko’s departed relative had accumulated a bill of Kshs.11, 540 less Kshs. 4, 000. 00 already paid making a balance of Kshs. 7, 500. 00. Oriko gave the claimant Kshs. 8,000. 00 to settle the bill and upon paying, the claimant handed to Oriko the documents plus the change of Kshs. 460. 00. The claimant testified that he then left for his home and continued with the rest day or off day.

The claimant’s evidence was that 2 days later he was summoned to the respondent’s security office. It transpired that Oriko’s relatives alleged that they had given Oriko Kshs. 13, 000. 00 on the day the claimant had come to assist the relatives with the clearance. Oriko admitted that he had his relatives’ balance of Kshs. 5, 460. 00 which he handed to them.

For the respondent, an investigation report was carried out following suspicious clearance of a body from respondent’s Mausoleum. The investigation report filed in Court implicated the claimant and a disciplinary action was recommended for engaging in suspected corrupt practices. The claimant was interdicted by the letter dated 09. 07. 2009 on account of colluding with other mentioned staff (between 23. 03. 2009 and 03. 04. 2009) to defraud the respondent and respondent’s customers whose relative had passed away. The letter stated that it was on 31. 03. 2009 that the claimant had colluded with the Charles Oriko, a Mausoleum attendant to engage in the alleged fraud. He was accused of using his position as an employee to divert due hospital revenue for his personal gain and also to solicit money from hospital clients through falsehoods. He was invited to show-cause why punishment would not be imposed including removal from the respondent’s service.

The Court has considered the findings of the respondent’s human resource department dated 11. 09. 2009 and filed as exhibit KNH-5. The account and findings implicating the claimant are similar to the claimant’s account before the Court that the culprit in the centre of the whole case was Oriko. At paragraph 2 on page 12 of exhibit KNH – 5, it was stated, “It was however, established that the relatives of the deceased confirmed that to have given to Mr. Oriko Kshs. 14, 000. 00 towards clearance of the Hospital bills, a fact that Mr. Oriko indeed admitted. It was further established that upon revelation of the incident, Messrs. Oriko and Oriango together agreed and returned Kshs. 5, 585. 00 to the relatives being the balance of Kshs.14, 000. 00 after clearing a bill of Kshs.12, 415. 00 less the deposit of Kshs. 4, 000. 00. Mr. Oriango however, indicated that the refunded amount [Kshs.5, 585. 00] had been kept by Mr. Oriko in his office locker which himself, he had no knowledge of. It would appear therefore, that Mr. Oriko was at the centre of the whole process and seems to have involved Mr. Oriango without informing him of the details. The two should however, be punished for the offence.”

It is not clear to the Court why the claimant had to be punished by a dismissal even after it was established that he had simply assisted the customers in the clearance procedures in circumstances whereby Oriko had hidden all other underlying details from the claimant. The Court finds that as per the claimant’s evidence, he set out to assist and he had no intention, at least no intention was established against him, to defraud the respondent of revenue or to defraud the customers or take a bribe from the customers.

Further, the human resource department of the respondent recommended that the claimant’s interdiction was to be lifted with loss of the salary that had been withheld and the claimant be placed on a final warning for engaging in suspected corrupt practices. Further, he was to be put on observation for a period of one year with quarterly confidential reports on his work performance and general conduct being sent to the Human Resource Manager.

The disciplinary hearing took place on 04. 11. 2010 per the minutes exhibit KNH-6. The Committee found it suspect that the claimant had to come from home to assist Oriko’s relatives in a situation whereby Oriko would have simply directed his relatives to the relevant desk officers to be helped. That the claimant bought an abstract for Kshs. 100. 00 suggested he must have been out to gain from the customers he was assisting. The disciplinary Committee then stated, “The fact that Mr. Oriago indicated that he received Kshs. 8,000. 00 from Mr. Oriko while he (Oriko) indicated that he gave him Kshs.13, 000. 00 raises a lot of suspicion. This points to possible collusion between them to defraud the hospital its due revenue.” The Committee recommended that the claimant be dismissed from the service on account of gross misconduct and loss of trust.

It is clear that Oriko returned to the customers or otherwise his relatives the Kshs.5, 585. 00 and there is no reason to doubt the claimant’s account that Oriko was solely responsible for attempting to irregularly take the money from the customers. The Court has carefully analysed the evidence and there is no evidence to support the disciplinary committee’s finding that the claimant and Oriko colluded to defraud the respondent its legitimate revenue. There was no material evidence to show that the claimant set out to ensure the respondent lost revenue. Instead, the evidence shows that the claimant set out to go out of his way to ensure that the hospital earned the revenue. The Court finds that there was no basis to fault the claimant’s goodness to come from home and do what he did on that day. The Court has further considered that Oriko was dealing with his relatives so that the claimant only came in to assist as he did and in the entire episode, the claimant was not shown to have engaged in irregular action or omission. Accordingly, the Court returns that as at the time of termination, had the respondent refrained from speculating that in Kenya today there cannot be good persons like the claimant who can set out to serve others but for goodness of such service and nothing else, then on the material on record, as at the time of termination, the respondent would have found that there was no good, valid or genuine reason to dismiss the claimant.

Thus the Court finds that the termination was unfair because as at the time of termination there was no valid reason as envisaged in section 45 and 43 of the Employment Act, 2007.

The next issue for determination is whether the claimant is entitled to the remedies as prayed for.

It was submitted that the claimant be awarded damages for the unfair termination. The Court has considered that the claimant desired to continue in employment. The Court has considered that the claimant had previous record of indiscipline involving a warning in 2003 and an allegation leading to suspension, a criminal charge and later acquittal in 2004. The Court has further considered that the claimant contributed to his predicament when he decided to offer himself to assist Oriko’s relatives on a day he was on official off. The Court puts his contribution at 25% and is awarded 9 months’ gross salaries for the unfair termination at Kshs.19, 414. 00 making Kshs.174, 726. 00 and in view of the margins of success, each party to bear own costs of the suit.

There were no submissions on the other remedies and they are deemed abandoned.

In conclusion judgment is entered for the claimant against the respondent for:

1) The declaration that the termination of the claimant’s employment by the respondent was unfair or unlawful.

2) The respondent to pay the claimant Kshs.174, 726. 00 by 01. 10. 2018 failing interest be payable thereon from the date of the judgment till the date of full payment.

3) Each party to bear own costs of the suit.

Signed, datedanddeliveredin court atNairobithisFriday 27th July, 2018.

BYRAM ONGAYA

JUDGE