[2013] KEHAT 3 (KLR)

DS v Association of People With Aids in Kenya (TAPWAK) (Cause 2 of 2013) [2013] KEHAT 3 (KLR) (15 November 2013) (Judgment)

Neutral citation: [2013] KEHAT 3 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 2 of 2013

JO Arwa, Chair, A Siparo, Vice Chair, MN Kullow, J Kyambi, S Bosire & J Muriuki, Members

November 15, 2013

Between

DS

Claimant

and

Association of People With Aids in Kenya (TAPWAK)

Respondent

Judgment

Employment Law – termination of employment – whether the termination of the Claimant was arbitrary, unlawful and an infringement of her rights under labour laws – Respondent failed to file defence and/or response before the Tribunal – whether the Claimant was entitled to damages on grounds of discrimination by the Respondent – validity of the claimJurisdiction – jurisdiction of the HIV Tribunal - whether the HIV Tribunal had jurisdiction to adjudicate on labour law issues - where the Claimant alleged arbitrary dismissal and infringement of her rights under labour laws Brief Facts: 1. The Claimant was employed by the Association of Persons with AIDS in Kenya (TAPWARK), herein referred to as the Respondent, from the year 2006 to 2012 when her services were terminated. The Claimant filed a suit against the Respondent but the Respondent failed to file a defence and/or response to the claim. The claim proceeded for hearing in the absence of the Respondent where the Claimant in her evidence adduced that the Respondent had renewed her contract of service as a Project Assistant, Information, Research and Advocacy for a period of twelve (12) months. In her evidence-in-chief, the Claimant informed the Tribunal that the Respondent had engaged in a myriad of malpractices in respect of running the organization including express acts of discrimination against persons living with HIV and AIDS. The Claimant specifically adduced that she was rebuked and various employee benefits to her such as transport and other entitlement were withdrawn and eventually her employment with the Respondent terminated.

2. The main issues for determination by the Tribunal were:i.Whether the termination of the Claimant was arbitrary, unlawful and an infringement of her rights under labour laws;ii.Whether the HIV Tribunal had jurisdiction to adjudicate on labour law issues;iii.Whether the Claimant was entitled to damages on grounds of discrimination by the Respondent.

Held: 3. The Respondent acted in a contemptuous manner by failing to appear before the Tribunal despite service of notices. The Respondent lacked courtesy to even acknowledge the receipt of the said notices. That was aggravated when the Respondent was an organization that purported to support and defend persons living with HIV and AIDS.

4. Although the dismissal of the Claimant by the Respondent was arbitrary, unlawful and contravened her rights under the labour laws, the Tribunal lacked jurisdiction to arbitrate on the issue since it fell under the jurisdiction of the Industrial Court.

5. The Claimant had proved on a balance of probability the claim of discrimination and the

Respondent was held liable. 6. Costs of the claim and an award of Kshs. 250, 000/= as damages for acts of discrimination to the Claimant. On 15th November 2013, the HIV and AIDS Tribunal delivered the following judgment:

7. The claimant herein was employed by the Association of persons with AIDS in Kenya hereinafter called TAPWAK in 2006 and has been in employment upto April 2012 when her services were terminated arbitrarily. After her dismissal, the claimant and the respondent exchanged various correspondences which culminated in the filling of the present suit with the tribunal on 26 October, 2012.

8. Subsequent to the filling of the claim the respondent was served with the claim initially by the claimant and later on diverse dates, the tribunal on its on motion directed that hearing notices be served on the respondent.

9. But for unknown reasons the respondent failed and neglected to file a defence and /or response to the claim. On the 20 September, 2013 the claim proceeded for hearing in the absence of the respondent where the claimant adduced evidence that the respondent renewed her contract of service as a project assistant, information, research and advocacy for a period of twelve months.

10. The claimant in her evidence in chief informed the tribunal that the respondent had engaged in a myriad of malpractices in respect of running the organization including express acts of discrimination against persons living with HIV and aids. The claimant herself being a person living with HIV and AIDS was greatly concerned by this and when she took up the same with the management of the respondent she was rebuked and various employee benefits to her such as transport and other entitlements were withdrawn and eventually her employment with the respondent terminated.

11. The tribunal did not have the opportunity to hear any evidence to the contrary of the claimant’s evidence from the respondent who had ignored to defend the claim.

12. This tribunal notes with much concern the contemptuous manner in which the respondent has held the tribunal by failing to appear before it despite service of notices. And for the lack of courtesy to even acknowledge the receipt of the said notices. This is aggravated when the respondent is an organization that purports to support and defend persons living with HIV and AIDS.

13. The claimant stated that her dismissal was arbitrary, unlawful and the same had contravened her rights under the labour laws. This tribunal finds that it lacks the jurisdiction to arbitrate on the same as the same falls under the armpit of the Industrial Court.

14. On the claim of discrimination, the tribunal unanimously find that the claimant has proved the same on a balance of probability and therefore hold the respondent liable. The tribunal in its judgment hereby awards the claimant a sum of Kshs. 250,000 (two hundred and fifty thousand) as damages for act of discrimination and the cost of this claim.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF NOVEMBER, 2013. ……………………………………………J. ARWA - (CHAIRMAN),……………………………………………A. SIPARO - (VICE-CHAIRPERSON),……………………………………………M.N. KULLOW - (MEMBER),……………………………………………J. KYAMBI - (PROF.-MEMBER),……………………………………………S. BOSIRE - (DR-MEMBER),……………………………………………J. MURIUKI - (MEMBER).