[2020] KEELRC 269 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 858 OF 2019

(Before Hon. Justice Hellen S. Wasilwa on 21st October, 2020)

DR. CHARLES MARINGO.....................................................................CLAIMANT

VERSUS

THE NATIONAL COUNCIL OF CHURCHES OF KENYA....1ST RESPONDENT

JUMUIA HOSPITALS LIMITED...............................................2ND RESPONDENT

RULING

1. The Claimant/Applicant, Dr. Charles Maringo filed a Notice of Motion application dated 17th December 2019 against The National Council of Churches of Kenya and Jumuia Hospitals Limited. The Application is brought under Rule 17 of the ELRC Procedure Rules, 2016 and Sections 3 and 12 of the Employment and Labour Relations Court Act and seeks for orders that:-

1. Spent;

2. Pending the hearing and determination of this application interpartes this honourable Court be pleased to issue order of mandatory injunction directing the 1st & 2nd Respondents, jointly and or severally, to pay the Claimant/ Applicant his outstanding salaries and other employment benefits for the months of May, June, July, August, September, October and November 2019, as well as that of December 2019;

3. Pending the hearing and determination of this application interpartes this honourable Court be pleased to issue an order of prohibitory injunction preventing the Respondents, jointly and or severally, from subjecting the Claimant/ Applicant to unlawful and illegal disciplinary proceedings, or actions that may amount to unfair labour practices, harassment, discrimination, or terminating the Claimant's employment with them;

4. Pending the hearing and determination of the main suit this honourable Court be pleased to order the 1st & 2nd Respondents to pay the Claimant/Applicant his salaries and other employment benefits, regularly and in accordance with his contract of employment, for as long as his employment with them lawfully subsists;

5. Pending the hearing and determination of the main suit this honourable Court be pleased to issue an order of permanent injunction preventing the Respondents, jointly and or severally, from subjecting the Claimant to unlawful and illegal disciplinary proceedings, or actions that may amount to unfair labour practices, harassment, discrimination, or unlawfully terminating the Claimant's employment with them; and

6. The 1st and 2nd Respondents be condemned to pay the costs of this application.

2. The Application is premised on the grounds that the Claimant/Applicant is employed by the Respondents as the Medical Administrator/Resident Physician for their hospital situated at Huruma, within the County of Nairobi. That the Respondents have declined to pay him salaries and other employment benefits despite the existence of a lawful contract of employment between them. That the Respondents were aware the Claimant/Applicant underwent two surgical head operations which rendered him unwell and under medication in March 2019 and the costs of the said operations also drained his finances. That despite being unwell the Respondents commenced disciplinary proceedings against him on the false pretext that he has been away from duty without leave. He is apprehensive that the proposed disciplinary proceedings are a sham and intended to sanitise the Respondents’ intention to unlawfully dismiss him from employment.

3. Further, that being denied his salaries and other employment benefits denies him access to the much needed healthcare and he is also unable to take care of his family. That the Respondents’ actions amount to unfair labour practices and go against labour laws and the international conventions to which Kenya is a party. That it is fair and just that the 1st and 2nd Respondents be compelled to pay the Claimant's salary and other benefits and the status quo remains.

4. In his Supporting Affidavit, the Claimant/Applicant avers that his contract of service is dated 28th March 2019, effective from 1st February 2019 and is to terminate on 31st January 2021. Further, that his gross monthly pay was Kshs. 492,140/- all inclusive and was to be payable monthly in arrears less applicable deductions. He annexes copies of his medical reports as exhibit DCM -2 and avers that his doctor recommended sick-offs for him to rest; one effective from 01/04/2019 and another from 01/07/2019, both sick-offs being for 3 months. He also avers that the Respondents have no justification to withhold his salary and that they summoned him for a disciplinary hearing on the ground of absenteeism. He contends that the said actions of the Respondents are callous, unconscionable and immoral.

5. The Respondents filed a Replying Affidavit dated 14th February 2020 sworn by the Legal Officer of the 1st Respondent, Annette Matolo who avers that the Claimant/Applicant was admitted to Agha Khan Hospital on 13/03/2019 and via a letter dated 19/03/2019, he requested for a salary advance to enable him settle his medical bills. That the Respondents’ HR Manager responded through a letter dated 21/03/2019 informing him the Respondents had committed to assist him as follows:-

a. Provision of Kshs 200,000 as per the medical scheme that he had been enrolled into.

b. Provision of Kshs 800,000 as a loan recoverable over 12 months period as requested with effect from 1st April 2019 to 31st March 2020.

6. That the Human Resource Manager further sent reminders to the Claimant/Applicant via email requesting him for sick-off sheets and Discharge summary sheet but the said requests were not honoured. She avers that the said required documentation were needed to formalize the Claimant’s sick offs in accordance with the Respondents’ HR Policy and to also facilitate processing of the Claimant’s salary. That when the Claimant failed to comply, the Respondents’ Human Resource Manager issued two show cause letters to him in June 2019 and September 2019 that is for gross misconduct and for absenteeism without approval respectively.

7. Further, that when the Claimant also failed to respond to the show cause letters, the Respondents constituted a panel to conduct a disciplinary hearing. That the decision to constitute the said panel was further communicated to the Claimant/Applicant on 11/09/2019 and which information included the date and time for the hearing proceedings. That when the Claimant failed to show up for the hearing, additional hearing notice letters dated 17/09/2019, 26/09/2019 and a final one on 27/09/2019 were issued and he was to be heard on 01/10/2019. That because the Claimant failed to attend the disciplinary hearings, the Respondents issued him with a summary dismissal notice dated 13th December 2019, effective 1st October 2019.

8. She continues to aver that prayer number two of the Application herein has already been overtaken by events and the Court should therefore not act in vain by making a determination on the same. She tabulates at paragraphs 17 and 18 of her affidavit the days the Claimant/Applicant is entitled to sick leave with full pay and the days he is entitled to half pay as per the sick sheets he provided and which is up to 14/08/2019. She contends that therefore the Claimant is considered to have been absent from work from 15/08/2019 to 30/09/2019 having exhausted all his sick leave days. That the Respondents are willing to pay the Claimant his salary (excluding the loan deductions in payment of Kshs. 800,000/= advanced to him) as follows:-

i. 1st May 2019 to 14th May 2019 - full pay

ii. 15th May 2019 to 31st May 2019- half pay

iii. June, July, August - half pay

iv. 1st September to date - salary to be paid at the discretion of the General Secretary as per Clause 4. 4.5 of the Human Resource Policy.

9. She further contends that a mandatory injunction is likely to be more drastic in its effect and that a case has to be unusually strong and clear before the same is granted even if it is sought in order to enforce a contractual obligation. Further, that the Court has the jurisdiction to intervene in a disciplinary process, but such intervention must be in a very exceptional case where compelling reasons have been given to justify the Court’s intervention. It is her averment that the Employment Act has provided robust reliefs including damages and reinstatement to remedy unfair and wrongful termination of employment.

Claimant/ Applicant Submissions

10. The Claimant/Applicant submits that the sick-offs annexed in his supporting affidavit were availed to the Respondents together with every necessary document as evidence of his ailment and treatment. That it would be unfair in the circumstances for the Respondents to state that his absence from work amounted to gross misconduct yet they were aware of his condition and one of their staff even visited him in hospital. He submits that the Respondents are also aware that he went ahead and discharged his duties as per his contract when he got well.

11. On the issue of the validity of the notices to show cause and summary dismissal, the Applicant submits that the last notice was in fact not served on him. That the letters summoning him for a disciplinary hearing were sent to him via email on 12/09/2019 yet he was supposed to attend the hearing on 13/09/2019 at 10:00 a.m. He submits that the same cannot be adequate notice and that the disciplinary process was therefore in contravention of his contractual rights, illegal, null and void.

12. He further submits that the whole disciplinary process was intended to sanctify the Respondents’ intention to summarily dismiss him from employment which they eventually did. He notes that the dismissal was done after the employer became aware of the suit and contends the dismissal was back dated to defend the Respondents against the claims raised in the instant Application.

13. The Claimant/Applicant submits that Articles 159(2), 41and47(1) of the Constitution are non-negotiable but which the Respondents have contravened by withholding his salary and subjecting him to unreasonable working conditions. That the Respondents have further not produced any evidence to show any valid and/ or justifiable cause as to why they unfairly and unjustly summarily dismissed the Claimant from employment as is required from an employer under Section 45(2) of the Employment Act. He cites the cases of Mrao Ltd vs First American Bank of Kenya Ltd & 2 others [2003] eKLR on what constitutes a prima facie case and Giella vs Cassman Brown & Co. Ltd [1973] E.A 358 where Spry, the Vice President of the then Court of Appeal for Eastern Africa stated that:-

"The conditions for thegrant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide the case on a balance of convenience."

14. That he has a strong case with a probability of success since the Respondents' entire actions towards him are founded on ill will and malice; secondly, he is now destitute since the Respondents have wilfully and without any lawful reason withheld his salary; and thirdly, the balance of convenience favours a grant of an injunctive relief.

15. The Claimant/Applicant submits that an award of damages cannot compensate the damages he continues to suffer through no fault of his. He relies on the case of Daniel Moroko Barito v Anthony Nge'erechi & another [2017] eKLR, where Onyango J while granting a permanent injunction held that the principles that apply to the grant of a permanent injunction are well settled in that once the plaintiff has established a right, infringement of that right will be restrained unless an award of damages would be an adequate remedy. That Gitumbi J in Panari Enterprises Limited v Lijoodi & 2 others [2014] eKLRwas of the view that damages are not always a suitable remedy where the Plaintiff has established a clear legal right or breach.

14. The Applicant submits that that there should not be a wrong without a remedy and prays to this Court not to sanctify the illegalities and breaches of his constitutional rights to fair labour practices and to reasonable working conditions.

Respondents’ Submissions

17. The Respondents submit that prayer number (iv) as stated in the Application herein has been overtaken by events. They bring to this Court’s attention that the Applicant did not serve them with his written submissions and that they have prepared their submissions without the benefit of having perused the same. They further note that the facts in their Replying affidavit have not been controverted at all by the Applicant as no supplementary or further affidavit was filed and/or served upon them.

18. They submit that the orders as sought by the Applicant are couched in the language of a final interdict and have the effect of disposing off the suit at an interlocutory stage. They cite the cases of Barclays Bank Of Kenya Ltd v Banking, Insurance & Finance Union (Kenya) 2019 on the jurisdiction of the Court to issue orders of injunction, the classicus Giella vs Cassman Brown & Co. Ltdand the appellate case of Lucy Wangui Gachara v Minudi Okemba Lore [2015] eKLR.

19. It is their submission that having given the Claimant opportunities to provide the requested documents and hearings so as to defend himself they enforced Section 10. 3 of the Terms of service which allows them to terminate the employment of an employee if he or she is unable to perform his duties. They further submit that the employment relationship between the Claimant and them was effectively terminated on 13th December 2019 and does not exist. That they are willing to pay the Claimant/Applicant the dues owed to him as provided in the contract of service subject to him availing the documents requested from him and clearing with the 2nd Respondent. They further submit that since due process was followed in terminating the employment of the Claimant, the orders for the mandatory, prohibitory and permanent injunction ought to be dismissed.

20. The Respondents submit that the Claimant/Applicant’s contract of service provides an employee with prolonged illness, three (3) months leave with full pay and thereafter three (3) months leave with half pay and that payment beyond the above stated period is at the discretion of the Respondents. That Clause 4. 4.5 of the 1st Respondent’s Human Resource Policy provides for similar terms of leave pay but after two consecutive months of service in any one calendar year. Further, that an employee who has exhausted his sick leave entitlement shall be required to undergo a medical examination to certify he is fit to resume duty and that the Council reserves the right to retire an employee on medical grounds and on the advice of a Council appointed doctor. It is their submission that the Claimant has also not provided a medical certificate from a medical practitioner to the Respondents contrary to the provisions of Section 11. 3 of the Contract of Service.

21. They submit that Section 44(4) (a) of the Employment Act and Clause 11. 4 (a) of the contract of service executed by the Claimant provides for summary dismissal for gross misconduct where the employee absents himself from the proper and appointed place for the performance of his work, without leave or other lawful cause. That since the Applicant breached the said provisions which he was further aware of together with the contract provisions pertaining to ill health he is guilty of misconduct and subject for summary dismissal held in the case of Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd [2014] eKLR which Court further held:-

“The aspect of being ill is not a wrong in itself. What is wrong is not bringing the same to the attention of the employer and further being away from work without authorization or sharing information as to where the employee was. This amounts to absconding duty and a serious labour sanction follows as this is tantamount to negation of a contract of employment. An employee is taken to have abandoned his contract of service without notice to the employer, in the South Africa Labour Court inSACWU v Dyasi [2001] 7 BLLR 731 (LAC) the Court held that desertion amounts to repudiation of the contract of employment which the employer is entitled to accept or reject. The acceptance of repudiation amounts to dismissal if employee fails to render service. Failing to contact the respondent constitutes unexplained absence for the period the grievant was away and he cannot compute his sick off days and consolidate them and state he had 51 days that he was entitled to out of the total due of 120 days as these sick off days were to be authorised and or approved by an officer of the respondent, if the grievant needed to utilise his sick off days up to a maximum of 51 days, he had the choice of making an application in compliance with the respondent’s operational requirements and failure to do so and continued absence establish the fact of desertion. Absence from work without a justifiable reason or permission and or authorisation and notice to the employer is a subject for summary dismissal under Section 44 of the Act.”

22. That further in the case of Dorothy Njoki Ndung’u v Machakos University College & Another [2017] eKLR, the Court declined to grant an injunction restraining the respondent from terminating the employment of the Applicant and held that:-

“Sick leave is a right of every employee. However, in granting that right, section 30 of the Employment Act has given safeguards to ensure that the same is enjoyed within reasonable measures and that the employer does not visit injustice upon an employee who is sick and who requires urgent medical attention,…

Section 30 of the Employment Act must be read in full and not in portions. The section gives the right to sick leave and creates a duty upon the employee to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf in charge of a dispensary or medical aid centre. As this is a conditional right which causes an employee to be absent from work due to sickness and any unlawful absence from work is a serious subject of Section 44(4) conditions for summary dismissal, section 30(2) goes ahead to create another duty upon an employee the employee shall notify or cause to be notified as soon as is reasonably practicable his employer of his absence and the reasons for it…”

23. The Respondents submit that the prayers as sought by the Claimant have been overtaken by events as the contract for services was terminated and that the Claimant is also in breach of the provisions of the Contract of service, Respondents’ Human Resource Policy and Section 30 of the Employment Act.

24. I have examined the averments of the Parties herein. The Claimant was employed by the Respondent on 1/2/2019 on a 2 year contract at a gross salary of Kshs.492,140/= per month.

25. Unfortunately as per his records, he fell ill soon thereafter and was admitted at Aga Khan University Hospital on 13/3/2019 and discharged on 1/4/2019. He underwent head surgery. The Neurosurgeon who attended to him gave him 3 months sick off.

26. On 1/7/2019, he was given a further 3 months sick off to end on 30/9/2019.

29. On 2/9/2019, the Respondents wrote to him a show cause letter indicating he was guilty of absenteeism and liable to summary dismissal. He was expected to reply by 3/9/2019. There is no indication he replied to this letter in any case or that he received it.

28. He was sent an email on 12/9/2019 on this absenteeism. He was thereafter invited for a disciplinary hearing on 13/9/2019 and which the Respondent aver he did not attend.

29. On 26/7/2019, the Claimant wrote to the Respondents through his Counsel indicating that he had been sick and had sent the relevant documents to the Respondents. The letter was a demand for unpaid salary since May, June and July.

30. The Respondent also wrote a show cause to the Claimant and he responded to it too.

31. From the averments above, it transpires that the Claimant has established some rush action on Respondent’s part though being sick and despite his own omission.

32. What the Applicant now seeks is an order to prevent disciplinary action against him which the Respondent avers has already been overtaken by events as the Claimant was dismissed with effect from 1/10/2019. In the circumstances, this prayer is actually overtaken by events and so cannot be granted at this point.

33. The Applicant also seek an order to compel the Respondent to pay his outstanding salary from May 2019 to December 2019.

34. The Respondents have averred that they terminated the Applicant’s services from October 2019. They have not explained why they then did not pay his salary from May 2019 to September 2019 when it was in their knowledge that he was actually unwell having undergone head surgery.

35. In my view, the Applicant is therefore entitled to his outstanding salaries for the said period of May 2019 to September 2019 of 5 months = 5 x 492,140 = 2,460,700/= - less statutory deductions.

36. Costs of this application to be in the Claim.

Dated and delivered in Chambers via zoom this 21st day of October, 2020.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Gitonga for 1st and 2nd Respondents – Present

Mutai for Claimant/Applicant – Present