[2022] KEELRC 417 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 112 OF 2017

(Before Hon. Justice Dr. Jacob Gakeri)

FELIX MWALIMU.................................CLAIMANT

VERSUS

NAIROBI SAFARI CLUB.................RESPONDENT

JUDGMENT

1. By a Statement of Claim filed on 24th January 2017, the Claimant sued the Respondent alleging that he was unlawfully dismissed and prays for:

a)A declaration that the Claimant’s employment services with the Respondent were terminated wrongfully and/or unfairly.

b)Unpaid salary for days worked in December

2016 Kshs.58,000

c)One month salary in lieu of notice Kshs.220,000

d)Unpaid salary for July and August 2015 Kshs.440,000

e)12 months’ salary Kshs.2,640,000

f)Untaken leave days (40 x 175) Kshs.513,000

g)Severance pay Kshs.110,000

h)Reinstatement

i)Costs of this Suit.

2. The Claimant’s case is pleaded as follows:

3. The Claimant was employed by the Respondent on or about 1st November 2014 as the Chief Engineer under a written contract of employment at a consolidated gross salary of Kshs.200,000/= and was to serve on probation for 3 months which he did. Under the contract, the Claimant was entitled to 30 days leave with pay each calendar year and termination was by one month’s notice by either party.

4. It is averred that on 26th June 2015 the respondent terminated the Claimant’s employment unjustifiably. That after the Claimant’s counsel served the proceedings in Cause No. 1341 of 2015, upon the Respondent on 14th August 2015, the Respondent changed its mind and terminated the Claimant effective 1st September 2015 and verbally agreed that the Claimant would be compensated at a sum to be agreed upon by the parties for the Claimant to withdraw the suit.

5. That on 1st October 2015 the Claimant’s salary was revised upwards to Kshs.220,000/=. It is the Claimant’s case that after reinstatement, he served the Respondent with dedication but was unjustly served with a warning letter on 7th December 2016 and was thereafter terminated on 8th December 2016 less than 24 hours after the warning letter.

6. It is averred that the Respondent terminated the Claimant without according him an opportunity to be heard. That the Claimant had served the Respondent for over one (1) year before termination.

7. Finally, it is the Claimant’s case that his dismissal was based on vague, flimsy and unfathomable grounds advanced by the Respondent.

8. The Claimant responded to the memorandum of reply stating that the Langata house belonged to the Chairman of the Respondent who kept on changing the specifications as construction and repairs continued. The Claimant maintains that the termination was unpreceded. That the salary review in October applied to all management staff and he did not withdraw Cause No. 1341 of 2015.

Respondent’s Case

9. It is the Respondent’s case that the Claimant’s employment was terminated on the grounds of failure to perform his duties and obey lawful order. It denies that the termination was unfair.

10. The Respondent admits that it employed the Claimant on 1stNovember 2014 as its Chief Engineer in the Engineering and Maintenance Department and his duties included those directed by the Management.

11. It is averred that the Respondent’s General Manager had noticed that the Claimant was not taking his work seriously or abiding by orders which culminated in the warning letter dated 27th January 2016 after which the Claimant became more responsible and acted in consonance with instructions from management including attendance of Heads of Department (HOD) meetings on a daily basis.

12. The Respondent averred that during various HOD meetings the General Manager reminded the Claimant about the removal of debris and garbage at the basement and staff entrance and the Claimant indicated that he would deal with the issue but did not.

13. That sometime in 2016 during the renovation of one of the Respondent’s house, the Claimant had advised the Respondent not to hire an independent contractor whose quotation was Kshs.1,800,000/=. That he would supervise the project but the project gambled up over Kshs.2. 5 million and remained incomplete, the memo dated 6th September2016 notwithstanding.

14. That the non-clearance of the debris and garbage at the basement and staff entrance elicited the memo dated 7th December 2016. The Claimant’s response was that the issue raised was not part of his job description. That the Claimant was dismissed thereafter.

15. The Respondent contends that the parties reached a compromise that the Claimant be reinstated on condition that Cause No. 1341 of 2015 be withdrawn but the Claimant did not do so.

16. Finally, the Respondent avers that the Claimant is not entitled to the monetary claims in compensation since the termination was conducted in accordance with the law. The Respondent prays for dismissal of the suit with costs.

Evidence

17. CW1 adopted the written statement. The statement rehashes the contents of the statement of claim. The Claimant testified that the Respondent had not paid him any money as itemised in the termination letter. The witness admitted to being a member of the NSSF.

18. On cross-examination, CW1 confirmed that he did not work in July and August 2016 and was as a consequence not claiming prayer (d) in the statement of claim and was unaware of the prayer of severance pay. That the General Manager determined the duties of the Claimant. It was the Claimant’s testimony that he did not clear with the Respondent or raise a grievance as provided by the Grievance Procedure.

19. Relatedly, the Claimant confirmed that he was unsure of the debris to be cleared and did not clear the same owing to shortage of time. He conceded that he was the Head of Engineering and Maintenance and attended HOD meetings.

20. Although the witness stated that he had been given a job description he did not produce it as an exhibit. He confirmed that his job description was provided by the management or in his absence the Head of Department, Mr. Igambi.

Respondent’s Evidence

21. RW1 Hellen Wanjiru Muchiri adopted the written statement. The witness testified that she joined the Respondent in 2016 when the Claimant was the Chief Engineer and was privy to the Claimant’s file. It was her testimony that the reinstatement was conditional upon withdrawal of the suit.

22. On clearance of debris and garbage at the basement the witness stated that she attended HOD meetings as Head of Human Resource and the Claimant had assured the General Manager that the same would be cleared but was not.

23. The witness told the Court that the Claimant provided no progress report on the renovation of the Langata house and spent about Kshs.2. 5 million and the project was never completed.

24. The witness further testified that the issue of debris and garbage clearance was revisited at the meeting held on 7th December 2016 and a warning letter was issued which the Claimant responded to denying that it was his job to clear the debris and garbage. He was dismissed the following day.

25. On cross-examination, the witness confirmed that the General Manager was the Claimant’s line manager. That for some time the Claimant did a good job and received accolades from management. The witness further confirmed that the Claimant was terminated on the grounds itemised in the letter of termination. It was the Respondent’s testimony that the Claimant was supposed to clear the debris from a construction site since the Respondent had outsourced garbage collection and housekeeping did the cleaning. It was also confirmed that two of the reasons for termination were not captured in the notice to show cause.

26. Finally, the witness confirmed that the Claimant was not given an opportunity to be heard, there was no meeting before termination and the figures set out in the statement of claim were not in dispute.

Claimant’s Submissions

27. The Claimant submits that the Claimant’s response to the notice to show cause angered the General Manager and led to the termination of employment. It is further submitted that the dismissal was arbitrary, and without fair and justifiable cause and the Claimant had no opportunity to defend himself.

28. It is further submitted that from the evidence on record, the house keeping division dealt with cleanliness including removal of garbage, and since the Claimant was an engineer, collection of garbage and debris was never assigned to him as the Chief Engineer. That the grounds for issuing the warning letter and eventual dismissal were flimsy and hence invalid that the Claimant did not refuse to carry out the task but explained himself and sought clarification and had been issued with only the warning letter dated 7th December 2016. It is the Claimant’s submission that the Respondent refused to follow the grievance handling procedure.

29. According to the Claimant the issues for determination are whether:

(i) The summary dismissal of the Claimant was lawful or amounted to wrongful dismissal.

(ii) The Claimant is entitled to the reliefs sought.

30. As regards the summary dismissal, it is submitted that the reasons for termination set out in the letter of termination do not match the reasons in the warning letter and as such, the Respondent had no valid reason to terminate the Claimant’s employment. Section 41 of the Employment Act is relied upon to show that the Respondent violated the law as it did not accord the Claimant an opportunity to be heard.

31. That the time frame between the warning letter and the dismissal was insufficient for the Claimant to invoke the grievance mechanism as per the Respondent’s Employee Orientation Manual. The Claimant had no opportunity to dispute the lawfulness and fairness of the termination. Reliance is made on the decision in Mary Chemweno Kiptoi v Kenya Pipeline Co. Ltd [2014] eKLRto underscore the right to be heard before termination of employment.

32. Further reliance is made on paragraph 45 of the Respondent’s Human Resource Manual on the grievance handling Mechanism which RW1 confirmed was not followed.

33. Counsel relies on section 45 of the Employment Act, 2007 to urge that the employer is required to prove the reason(s|) for the termination and justify the same. The decision in Jaffar Mohamed v Ready Consultancy Co. Ltd. [2015] eKLR is relied upon for emphasis. Section 43, 44 and 47(5) are also cited as is the decision in Walter Ogal Anuro v Teachers Service Commission [2013] eKLRto underscore the essence of substantive, justification and procedure of fairness in termination of employment contracts.

34. As regards the reliefs sought, it is submitted that the RW1 confirmed that the Respondent was still holding the Claimant final dues as follows:

(a) One month’s salary in life of notice Kshs.220,000

(b) 40 accrued leave days Kshs.513,000

(c) Unpaid salary for 8 days in December Kshs.58,000

Total Kshs.791,000

35. That this sum was not in dispute and had been admitted.

36. Finally, Section 49 of the Employment Act is relied upon to urge that the Claimant is entitled to compensation for the unfair termination of employment and the same be awarded as set out in the statement of claim.

Respondent’s Submission

37. Although as of 27th January 2022 counsels for the parties indicated that they had filed submissions and served, the portal had no record of the filings and parties were directed by the Court to resubmit their submissions including availment of hard copies. A direction the Claimant heeded but the Respondent did not. As at the date of writing this judgment on 11th March 2022, the Respondent submissions had not reflected in the portal and were therefore not incorporated in this judgment.

Analysis and Determination

38. I have considered the pleadings, evidence and the submissions on record. The issues for determination are whether:

(i) the Claimant’s summary dismissal was lawful;

(ii) the Claimant is entitled to the remedies sought.

39. As to whether the Claimant’s dismissal was lawful, the Court is guided by the provisions of sections 41, 43, 44, 45 and 47(5) of the Employment Act. Both the Court of Appeal and this Court was robustly and stead fully applied these provisions in legions of decisions and there is abundant of jurisprudence in this area.

40. Section 45(2) of the Act provides that:

A termination of employment by an employer is unfair if the employer fails to prove –

(a) That the reason for the termination is valid.

(b) That the reason for the termination is a fair reason.

(i) Related to the employees conduct capacity or compatibility; or

(ii) Based on the operational requirements of the employer and

(c) that the employment was terminated in accordance with fair procedure.

41. These provisions underscore the essence of a fair termination of a contract of employment. The provision is augmented by other provisions such as Section 44 on summary dismissal, section 43 on the burden of the employer to prove the reason or reasons for termination, Section 47(5) on the duty of the employer to justify the ground for termination and the employee to prove that an unfair termination of employment or wrongful dismal has occurred. Section 41 of the Act provides the procedural attributes of a lawful termination or dismissal.

42. In Pius Machatu Isindu v Lavington Security Guards Ltd [2015] eKLRthe Court of Appeal expressed itself as follows:

“There can be no doubt the Act, which was enacted in 2007, places heavy legal obligations on employer in matter of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissed (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (Section 47(5)), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination. The Act also provides for most of the procedures to be followed …”

43. Similarly, in Naima Khamis v Oxford University Press [EA] Ltd [2017] eKLRthe Court of Appeal, after highlighting the provisions of section 43(1) and 45(2)(c) ofthe Employment Act stated as follows:

“From the foregoing termination of employment may be substantively and/or procedurally unfair. A termination is also deemed substantively unfair where the employer fails to give valid reasons to support the termination. On the other hand, procedural unfairness arises where the employer fails to follow the laid down procedure as per contract or fails to accord the employee an opportunity to be heard as by law required.”

44. The Court is in agreement with these sentiments as well as those expressed in Walter Ogal Anuro v Teachers Service Commission (supra).

45. I now proceed to apply the foregoing provisions and propositions of law to the facts of the instant case.

Reason for termination:

46. The termination letter dated 8th December 2016 identifies three reasons for termination:

(i) Poor workmanship on the Langata House Project which cost the company well over your initial estimate.

(ii) Failure to clear the basement and staff entrance area of debris and garbage.

(iii) Delay in completion of hotel projects which inhibited our ability to provide guests with satisfactory service.

47. Suffice it to state the termination letter came on the heels of the warning letter dated 7th December 2016. The letter accused the Claimant’s the casual approach towards the clearing of debris and garbage in the basement. He was also accused of negligence, lack of interest and irresponsibility as the Head of Department in charge of Engineering and Maintenance. The Respondent called upon the Claimant to ensure that the basement staff entrance and garbage store were cleared at the earliest possible opportunity.

48. The Claimant responded on the same day stating that clearing the staff entrance and basement was not an Engineering function but a house keeping function. The Claimant concedes that the mess at the staff entrance was occasioned by leftover machinery by an external contractor supervised by one Mr. Kago the Transport Manager. The Claimant emphasised that his job description had no such function and the same had not been assigned to him. Further the Claimant indicated that contractors working in the building did so without any input from his department or reference and had no control over them.

49. Finally, the Claimant reminds the General Manager that the Respondent had a garbage clearance contract serviced by housekeeping.

50. While the accusation about the Langata House and delay in completion of hotel projects were not put to the Claimant for a response and nothing turns on them, the failure to clear debris and garbage at the basement and staff entrance was. The Claimant’s defence was that it was not in his job description and the Respondent had a garbage collection contract. The Claimant did not furnish the Court with his job description and in cross examination confirmed that his duties were directed by the Management or in his/her absence the Head of Department, Mr. Igambi, consistent with paragraph II of the Letter of Appointment dated 1st November 2014. The second defence was that the Respondent had a garbage collection contract sourced by house keeping a fact confirmed by RWI on cross examination. However, RWI also confirmed that the clearance involved debris from a construction site.

51. Although the Claimant confirmed on cross-examination that he had a written job description he did not avail copy for the Court’s perusal. In the absence of a detailed or itemised job description, the Court is constrained to rely on paragraph II of the letter of appointment to construe the Claimant’s duties as he confirmed that his duties were “As directed by Management and in his/her absence by a designed Head of Department.”

52. RW1 confirmed that Mr. Allan Igambi was the Claimant’s line manager. As confirmed by RW1 and the warning letter dated 7th December 2016 the issue of clearance of the staff entrance had arisen previously and the Claimant according to RW1 had indicated that the same would be cleared but it was not and had not up to the date of dismissal.

53. Section 43(2) of the Act provides that:

The reason or reasons for termination of a contract are the matters that the employers at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.”

54. For the foregoing reasons the Court is satisfied that the Respondent has a balance of probabilities demonstrated that it had a valid and fair reason to dismiss the Claimant. Paragraph II of the Letter of Appointment enjoined the Claimant to discharge the duties as directed by the Management or the Head of Department.

Termination Procedure

55. Having found that the Respondent had a justifiable reason to dismiss the Claimant in consonance with section 45(2)(a) and (b) of the Employment Act, I now proceed to make a determination whether the Respondent terminated the Claimant’s employment in accordance with a fair procedure as contained by Sections 45(2)(c) and 41 of the Employment Act 2007. The burden of proof is on the Respondent “that the employment was terminated in accordance with fair procedure.”

56. It is not in contest that the Respondent issued a warning letter on 7th December 2006 and the Claimant responded on the same day. Relatedly, it is not in dispute that the Claimant’s employment was summarily terminated on 8th December 2016.

57. RW1 confirmed on cross examination that the Claimant was not accorded an opportunity to be heard on the issue. The witness was unequivocal that the Claimant was not taken through a disciplinary hearing.

58. In addition, the witness testified that the Respondent neither invoked the internal grievance handling mechanism as provided by the Human Resource Manual nor the provision of the Employment Act as regards termination of employment.

59. In the words of Court of Appeal in Kenfreight (EA) Ltd v Benson K. Nguti [2010] eKLR:

“Unfair termination involves breach of statutory law. Where there is a fair reason for terminating an employee’s service but the employer does it in a procedure that does not conform with the provisions of a statute, that still amounts to unfair termination. On the other hand, wrongful dismissal involves breach of employment contract like where an employer dismisses an employee without a notice or without the right amount of notice contrary to the employment contract.”

60. The Claimant was entitled to a one month’s notice but was not given. InStandard Group Limited v Jenny Luesby [2018] eKLR the Court of Appeal stated that:

“If follows that the act of summarily dismissing the Respondent without giving her an opportunity to be heard amounted to unfair termination as defined in Section 45 of the Act”.

61. From the evidence on record and in its haste to dismiss the Claimant, the Respondent blatantly ignored all the procedural safeguards prescribed by its own internal documents and the law. The Court has no hesitation in finding and holding that the Claimant’s summary dismissal on 8th December 2016 was unlawful for want of procedural propriety.

62. I now proceed to determine the reliefs that commend themselves for issue.

(a) Having found that the Claimant’s termination by the Respondent was unlawful a declaration to that effect is hereby issued.

(b) Unpaid salary for the 8 days worked in December 2016 Kshs.58,000/=

63. RW1 confirmed on cross examination that financial package as the letter of termination dated 8th December 2016 was intact. The figures were not in dispute and the amount was owed to the Claimant. Based on the admission, the Claimant is awarded the sum of Kshs.58,000/=.

(c) One month salary in lieu of notice Kshs.220,000/=

64. This sum was payable under the letter of termination and RW1 confirmed as much. The Claimant is as a consequence awarded Kshs.220,000/= being one month salary in lieu of notice.

(d) Unpaid salary for the month of July and August 2015 Kshs. 440,000/=

65. On cross-examination, the Claimant confirmed that he did not work for the two months and was not claiming the sum of Kshs.440,000/=. The claim is dismissed.

(e) 12 months’ salary as compensation Kshs.2640,000/=

66. Having found that the Claimant’s employment was terminated unlawfully, the Claimant is eligible for the discretionary relief provided by Section 49(1) of the Employment Act subject to observance of the provisions of Section 39(4) of the Act. In determining the quantum of compensation, the Court has taken the following factors into consideration:

i) The Claimant was an employee of the Respondent for slightly over one year after reinstatement.

ii) The Claimant had been issued with one warning letter dated 7th December 2016. The memo from the General Manager dated 27th January 2016 spoke to his alleged negligence and irresponsibility.

iii) The Claimant did not appeal the decision.

iv) The Claimant wished to continue working for the Respondentas exemplified by the prayer for reinstatement.

v) The Claimant contributed to the termination. The letter of appointment was clear on how his duties weredirected.

67. In light of the above, the equivalent of two months gross salary is fair.

(f) Unpaid untaken leave days (40) (40 x 1. 75 days wage) Kshs.513,000/=

68. According to the letter of termination, the Claimant had a total of 40 accrued leave days as part of the exit package which he did not collect. RW1 confirmed as much and did not contest the figure. As a consequence, the Claimant is awarded Kshs.513,000/= being payment for the 40 accrued leave days.

(g) Severance pay Kshs.110,000/=

69. On this claim, the Court is guided by the sentiments of Onyango J. in Hassanath Wanjiku v Vanela House of Coffees [2018] eKLR where the Court expressed itself as follows:

“On severance pay claimed, the Claimant appears to confuse the term with service pay. On the submissions filed on behalf of the Claimant, reference is made to section 35(5) and (6) which provide for service pay while severance is provided for under section 40(1)(g) as a benefit for an employee who has been declared redundant.

Under section 35(6) an employee who is a member of NSSF is not entitled to service pay. The Claimant having been a member of NSSF is not entitled to serve pay. She is also not entitled to severance pay as she was not declared redundant.”

70. The Court similarly finds in this case. The Claimant confirmed having been a member of NSSF.

(h) Reinstatement without any loss of benefits and/or seniority

71. Analogous to other remedies available to parties in cases of unfair termination or dismissal, the remedy of reinstatement is discretional. The remedy of reinstatement is provided for in Section 49(3) as read with Section 50 of the Employment Act and Section 12(3)(vii) of the Employment and Labour Relations Court Act 2011. See Maraga JA (as he then was) in Kenya Airways Ltd v Aviation and Allied Workers Union Kenya & 3 Others [2014] eKLR.

72. Granted that the Claimant was dismissed on 8th December 2017 which is undoubtedly more than 4 years ago, the remedy of reinstatement has been overtaken by events by virtue of passage of time and is consequently declined.

73. In conclusion, judgment is entered for the Claimant againstthe Respondent as follows:

a)Unpaid salary for 8 days in December

2016 Kshs.58,000

b)One month salary in lieu of notice Kshs.220,000

c)Equivalent of two months’ salary Kshs.440,000

d)Untaken 40 leave days Kshs.513,000

Total Award is Kshs.1,231,000

e)Costs of this suit.

f)Interest at Court rates from date of judgment till payment in full.

74. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH DAY OF MARCH 2022

DR. JACOB GAKERI

JUDGE

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

DR. JACOB GAKERI

JUDGE