[2018] KEELRC 2273 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NUMBER 1393 OF 2015

DAVID MUHEKAH MAINA..................CLAIMANT

VERSUS

RESORT KENYA LIMITED.............RESPONDENT

JUDGEMENT

1. By a memorandum of claim filed on 11th August, 2015, the claimant averred he was employed by the respondent in the position of Dealer C. He rose through the ranks and by the time of termination of his services he was occupying the position of Junior Gaming Pit Boss. He averred that his services were terminated on 31st March, 2014 without any or any valid reasons.

2. The respondent in its memorandum of response averred that the claimant’s employment was properly terminated after he continued to breach the respondent’s rules and regulations by chewing gum during working hours and being disrespectful to his immediate supervisor. The respondent further averred that the claimant received oral and written warnings on his conduct.

3. According to the respondent, the claimant was invited by the Human Resource manager to offer an explanation over his alleged misconduct and his response was that his supervisor was racist. This according to the respondent contradicted the evidence of the supervisor and other staff members who were present at the time of the incident all of whom accused the claimant of being very rude and disrespectful to the supervisor to the extent of challenging him to a physical duel.

4. The respondent further averred that upon termination the claimant was paid all his dues including 11 months service gratuity, leave not taken and two months’ salary in lieu of notice.

5. In his oral evidence, the averments in the memorandum of claim and further stated that he initially had a good working relationship with his supervisor Mr Nectar but this changed when Nectar became arrogant. According to him Nectar called him to his office and shouted at him in front of his juniors. The matter was discussed and it was agreed that issued be sorted out away from junior staff.

6. On 11th April, 2014 Nectar called him to the office and shouted at him and asked him to throw away the gum he was chewing. He told Mr Nectar that he was not chewing gum to disguise drunkenness lime him who used to come to work drunk. According to him, the issue was later discussed and resolved. Later he was summoned to the HRM’s office and was called by the General Manager too. He told them that there was part of the conversation between Nectar and himself which was not recorded. He further informed the HRM Mr Kamau to carry out his own investigations into the incident. He further told Mr Kamau that Mr Nectar had become arrogant bordering on racism.

7. In cross-examination he stated that the language used a recorded in the report turned out to be the language Mr Nectar would understand. According to hi the communication came about after Mr Nectar treated him disrespectfully. He admitted that he knew he was not supposed to chew gum. He furhter admitted that he was paid Kshs 493,882?= upon termination as terminal dues.

8. The respondent witness Mr Paul Kamau informed the court that he was the HRM for the respondent. He received a report of the incident between the claimant and Mr Nectar. He called the claimant and he confirmed the report. He also discussed the issue with Mr Nectar and issued the claimant with a warning letter.

9. In cross-examination he stated that the respondent gave a hearing when there was violation of rules and procedure. According to him he issued the claimant with a warning letter over the incident and the matter ended there. The claimant was terminated two weeks after the incident.

10. The court has reviewed and considered the pleadings and evidence in support of each parties position in the matter. The court’s particular attention has been drawn to the report of the conversation between the claimant and Mr Nectar attached to the memorandum of response. The remarks and words attributed to the claimant which he did not refute are remarks and words not fit to be spoken or made to person in authority over an employee. They in fact constitute valid reasons for dismissal. The respondent cannot therefore be faulted for terminating the claimant’s services.

11. The respondent’s witness Mr Paul Kamau however informed the court that the incident was discussed and the claimant issued with a warning letter and the issue ended there. The decision to terminate the claimant’s services was made two weeks thereafter. The decision to terminate an employee after a particular allegation or incident ought to be made immediately the employer becomes of the view that the best way to handle the allegations or incident is to terminate the services of the employee concerned.

12. Once an employer issues an employee with a warning letter where dismissal or termination of services would have been more appropriate, the employer cannot later on and on the same facts terminate the services of an employee as happened in this particular case.

13. The court therefore holds that whereas there existed valid and justifiable reasons for terminating the claimant’s services it was unfair to terminate his services after he had been issued with a warning letter and made to believe the matter had been resolved.

14. The court therefore and in view of the unique circumstance of this case awards the claimant minimal damages equivalent to one month’s salary as compensation for unfair termination of services.

15. The claimant shall further have the costs of the suit.

16. It is so ordered.

Dated at Nairobi on this 16th day of February 2018

Abuodha J. N.

Judge

Delivered on this 16th day of February 2018

In the presence of:-

………………...…for the claimant

……………….. for the Respondent

Abuodha J. N.

Judge