[2018] KEELRC 1959 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 218 OF 2018

EVANS NYAGAH NJOKI...........................................CLAIMANT

v

SANLAM KENYA PLC.........................................RESPONDENT

RULING

1. Evans Nyagah Njoki (applicant) was appointed as Head of Corporate Services by Pan Africa Insurance Holdings Ltd (changed name to Sanlam Kenya PLC)(Respondent) through a letter dated 7 April 2016.

2. On 1 February 2018, the Respondent’s Board Chairman, John Simba summoned the applicant to a meeting at Sankara Hotel.

3. When the applicant arrived for the meeting, he found the Chairman, the Regional Director East Africa, Sanlam Emerging Markets (Mr. Julius Mugabe) and the Group Head of Human Resources, Sanlam Emerging Markets, Mr. Neil Joubert.

4. According to the applicant, the Chair handed to him a draft Mutual Termination Agreement and gave him 2 hours to make a decision thereto or risk a disciplinary process leading to dismissal.

5. The applicant sought for more time from Mr. Mugabe but there was no response. On 3 February 2018 he realised his office email account had been disabled.

6. On 4 February 2018, the applicant sent an email to the Chairman indicating that he had rejected the deal.

7. On 13 February 2018, the Respondent’s acting Group Chief Executive Officer wrote to the applicant notifying him to appear for a disciplinary hearing to be held in Cape Town, South Africa on 8 March 2018. He received the notification on 14 February 2018.

8. The invitation letter set out some 6 allegations the applicant was informed he would answer to. He was also informed of the right to be accompanied by a fellow employee of his choice during the hearing.

9. As to the process of hearing, the letter advised the applicant that the disciplinary hearing would be chaired by a Labour Relations Advisor while the Respondent would be represented by its Regional Executive with the Group Human Resources Manager sitting in as an observer.

10. The Respondent indicated it would cater for all related costs.

11. The Respondent further asked the applicant to proceed on paid leave.

12. The invitation to the disciplinary hearing prompted the applicant to move Court on 23 February 2018 under certificate of urgency seeking orders

1. ….

2. THAT this Honourable Court be pleased to grant an ex-parte interim injunction restraining the Respondent either by itself, its shareholders, servants and/or agents from proceeding with the disciplinary hearing scheduled for Wednesday, 7th March, 2018 or any other date and in any way from harassing, intimidating, threatening, terminating, dismissing, passing a decision and in any other way interfering with the Applicant’s/Claimant’s employment until the hearing and determination of this application.

3. THAT this Honourable Court be pleased to grant an injunction restraining the Respondent either by itself, its shareholders, servants and/or agents from proceeding with the disciplinary hearing scheduled for Wednesday, 7th March, 2018 or any other date and in any way from harassing, intimidating, threatening, terminating, dismissing, passing a decision and in any other way interfering with the Applicant’s/Claimant’s employment until the hearing and determination of the suit.

4. THATthis Honourable Court to order the Respondent to pay the Applicant withheld variable pay amounting to Kshs 30,871,974. 00 pending the hearing and determination of the suit.

5. THAT cost of this application be provided for.

13. When the application was placed before the Court on the same day, it certified it urgent and allowed order 2 in terms staying the hearing in Cape Town pending inter partes hearing on 7 March 2018.

14. The hearing could not proceed on 7 March 2018 because the applicant requested for time to study the Respondent’s replying affidavit which had been served upon him the previous day. The applicant also sought to file a further affidavit.

15. The Court allowed the applicant to file a further affidavit, extended the interim orders and rescheduled inter partes hearing to 13 March 2018.

16. The applicant did not file the further affidavit and therefore the hearing fixed for 13 March 2018 aborted.

17. The applicant further drew the attention of the Court to a related application in Cause No. 263 of 2018, Victoria Ipomai v Sanlam Kenya PLC.

18. The Court allowed the applicant more time to file a further affidavit and the filing of submissions.

19. The applicant filed a supplementary affidavit on 16 March 2018 and submissions on 19 April 2018 while the Respondent filed a further affidavit on 19 March 2018 and its submissions on 20 March 2018 (the late filing of the supplementary affidavit frustrated the hearing set for 19 March 2018).

20. The Court ultimately heard oral addresses from the parties on 24 April 2018. The Court has considered all the material placed before it and has seen no need to rehash the facts and arguments as presented in any detail at this interlocutory stage.

21. Before examining whether the applicant has met the legal threshold for the grant of injunctive relief at this stage, the Court notes that it will not delve into the factual disputes or substantial merits of what appear to be the parties contentions as presented through the affidavits and written submissions. That exercise must await the trial of the facts.

22. The relationship between the applicant and the Respondent is/was subject to the employment contract, the Respondent’s HR Policy and Procedures Manual, the Employment Act, 2007 and ultimately the Constitution of Kenya.

23. In the view of the Court, the application of the HR Policy and Procedures Manual is decisive of the dispute at this stage of the proceedings.

24. Section 4 of the HR Policy and Procedures Manual has set out in fastidious detail the requirements and conditions to be complied with when addressing cases of discipline.

25. In terms of section 4. 3.4 of the Manual, disciplinary cases involving senior employees such as the applicant must be initiated/processed by the Chief Executive, and that was done in the instant case.

26. The Chief Executive is then required to cascade the case to the Human Resources Board Committee, and it is the function of the Board Committee to determine the case.

27. The Committee which was constituted by the Respondent’s Group Chief Executive comprised a Mr. Hennie Bredenkamp, a Labour Relations Advisor.

28. There is no evidence at all that the said advisor is a member of the Respondent’s Board or for that matter the Board’s Human Resources Committee.

29. The other members of the Committee were indicated as Julius Mugabe, Regional Executive with Miriam Wambui, Group Human Resources Manager sitting as an observer.

30. In the replying affidavit sworn by the Respondent’s Group Human Resources Manager, Mr. Julius Mugabe is described as a Director of the Respondent, but there is no indication whether he serves as a member of the Human Resource Board Committee.

31. It is clear to the Court that the Committee constituted by the Respondent to handle the applicant’s disciplinary case was not properly constituted in terms of its own Policies (the Court is of course alive to the possibility/desirability of an employer providing for an external expert to chair or participate in disciplinary hearings but there ought to be express provision for such in the relevant disciplinary procedures).

32. The question therefore begs what would be the implication or effect of an employer not complying with its internal disciplinary procedures. Case law may assist in unravelling the answer.

33. In The Post Office v Strange (1981) IRLR 515, it was held that

a failure by an employer to observe its own disciplinary procedures may amount to repudiation of contract.

34. Similar dicta appear from Gunton v Richmond-upon-Thames LBC (1980) ICR 755.

35. An employer who has a disciplinary policy should scrupulously comply with the requirements of such policy.

36. The employer’s disciplinary policies and in this case the Respondent’s HR Policies and Procedures Manual should also be understood within the context of section 12 of the Employment Act, 2007 which requires an employer to have a disciplinary policy.

37. The next question which arises is whether the Court ought to intervene in a disciplinary process where there is non-compliance with the internal disciplinary policies or indeed with the statutory minimum protections such as is contemplated by section 41 of the Employment Act, 2007.

38. There is ample case law on that question.

39. The question has been addressed in cases such as Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd (2015) eKLR, Rebecca Ann Maina & 2 Ors v Jomo Kenyatta University of Agriculture and Technology (2014) eKLR, Aviation & Allied Workers Union v Kenya Airways Ltd (2012) eKLR,Joseph Mutura Mberia & Ar v Council of Jomo Kenyatta University of Agriculture and Technology (JKUAT) (2013) eKLR and Booysen v The Minister of Safety and Security & Or (2011) 1 BLLR 83 (LAC)

40. From the authorities, it is clear that the Court has the jurisdiction to intervene in a disciplinary process, but such intervention must be in very exceptional cases where compelling reasons have been given to justify the Court’s intervention.

41. The compelling reasons would include the fact that grave injustice would be occasioned to the employee and that the employee has no alternative means of attaining justice, or remedies.

42. In the view of the Court, this case exhibits exceptional circumstances in that the contract in place between the parties was concluded in Kenya and was being performed in Kenya. The parties are also domiciled in Kenya. It was subject to Kenyan law as well and the applicant became assured of the protections thereunder.

43. Therefore, holding the disciplinary hearings outside the jurisdiction of the Court (in Cape Town) without a clear agreement as to the law to be applied leaves doubt at this stage as to whether protections assured employees would be observed.

44. In effect, the Court finds and holds that the applicant has met the threshold for the grant of the order(s) sought and the Court orders that

Pending the hearing and determination of the Claim herein, the intended disciplinary hearings against the applicant scheduled for 7 March 2018 or any other date in Cape Town South Africa are hereby stayed.

45. For clarity, the Court has not interdicted disciplinary proceedings within the country in accordance with the Respondent’s Human Resources Policies and Procedures Manual.

46. Costs in the Cause.

Delivered, dated and signed in open Court in Nairobi on this 21st day of May 2018.

Radido Stephen

Judge

Appearances

For applicant Mr. Kamotho instructed by Kamotho Njomo & Co. Advocates

For Respondent Mr. Omondi instructed by Coulson Harney LLP, Advocates

Court Assistant Lindsey