[2015] KEELRC 429 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT&LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 272 OF 2014

GIDEON AKWERA……………………........................CLAIMANT

VERSUS

BOARD OF GOVERNORS CHURCH

ON THE ROCK ACADEMY…………....…….........RESPONDENT

JUDGMENT

1. The Claimant filed his suit on 25th February 2015 seeking resolution of a dispute he framed as the termination of his services and failure by the Respondent to adequately compensate him. The Claimant averred that he was employed in 2011 as a primary school teacher at an initial salary of Kshs. 17,500/- and after working with diligence his salary was reviewed to Kshs. 20,200/-. He averred that at about 5. 00pm on 27th January 2014 he received a letter termed as ‘disciplinary action’ making accusations against him and seeking that he furnishes and explanation why disciplinary should not be taken against him. He averred that on 30th January 2014 he received a second letter inviting him to a disciplinary meeting on 31st January 2014 but he did not attend the meeting as he had not furnished his defence, he did not have a representative at the meeting and neither was the letter copied to anyone who could represent him. He avers that he sought that the school provides as representative for him and that he did not receive a concrete answer. He averred that on 3rd February 2014 he was called by the administrator who invited him for a disciplinary meeting at the school but he sought a letter and after persuasion agreed to go to the school on 5th February 2014 where he was informed that the school wanted him out of there and they would pay him anything. He was later called by his advocates who informed him of 2 letters received for him and on 21st February 2014 went to the lawyers office where he received a letter inviting him to a disciplinary meeting on 19th February 2014 and a letter dismissing him from his employment. He averred that the method of dismissal was improper and that the Respondent breached the mandatory provisions of the law. He thus sought payment in lieu of notice Kshs. 20,020/-, severance pay for 4 years worked at the rate of 15 days for each year worked Kshs. 40,000/-, general damages for unlawful termination Kshs. 240,240/-, costs of the suit together with interest.

2. The Respondent filed a Memorandum of Defence on 9th February 2015. The Respondent averred that the gross pay after probation was Kshs. 17,000/- and that the Respondent received information from its students about the Claimant’s acts of gross misconduct. The Respondent averred that the Claimant effected corporal punishment by beating students despite knowing that corporal punishment is not allowed at the Respondent’s institution. The Claimant was reported to have been asking students for shoes under pretext that he had forgotten his at home and that the Claimant refused to return the shoes to the students. The Respondent averred that the Claimant through intimidation demanded that students bring him items from their homes ranging from shoes, clothes, toys and household items. The Respondent averred that it wrote a letter on 27th January 2014 requiring him to give an explanation why disciplinary action should not be taken against him. The Respondent averred that the Claimant was invited to a disciplinary meeting on 30th January 2014 and the Claimant sought a postponement so that he could bring a representative to accompany him to the disciplinary hearing which was now set for 7th February 2014. The Respondent averred that the Claimant responded to the invitation by causing a demand letter to be issued by his advocate. The Respondent wrote back rescheduling the disciplinary hearing to 14th February 2014 in order for the Claimant to have ample time to prepare his defence and bring a representative to the hearing. The Respondent averred that the Claimant failed to attend the hearing or communicate his intended non-appearance. The Respondent averred that due to the non-attendance the panel recommended that the Claimant be summarily dismissed on the allegations raised against him and for absconding duty. The Respondent averred that it paid the Claimant’s salary for the month of February 2014 in spite of the Claimant absconding duty. The Respondent averred that it accorded the Claimant an opportunity to be heard in his defence but he did not avail of the opportunity and that the Claimant was dismissed for good cause and in accordance with the law. The Respondent thus sought dismissal of the Claimant’s case.

3. Parties indicated to Court of a consent they had to dispose the matter off pursuant to Rule 21 of the Rules of this Court. The Court acceded to their request and gave a timetable for filing of final submissions. The Claimant filed written submissions on 2nd July 2015 and the Respondent filed its submissions on 16th July 2015. In his submissions, the Claimant submitted that he received a letter to show cause and before he could even respond to it, he was given a letter inviting him to a disciplinary meeting. He submitted that he sought to bring a representative and no answer was given to him only to be informed later by the administrator that directives had been given by the Respondent’s deputy director that he should not be seen anywhere in the school. He submitted that he complied and when he was invited to the school on 3rd February 2014 and while he was there he sought audience with the deputy director who refused to see him. He avers that on 21st February 2014 he visited his advocates’ office and he was handed two letters and upon opening them he discovered that they were from the Respondent. The Claimant submitted that the first one was dated 14th February 2014 and was inviting him for a disciplinary meeting on 19th February 2014 and the second was a summary dismissal letter dated 20th February 2014. The Claimant submitted that the Respondent’s case was that it received complaints against the Claimant and through letter dated 27th January 2014 sought an explanation and that on 30th January 2014 a letter was served upon the Claimant seeking his attendance to a disciplinary hearing on 31st January 2014 for which the Claimant sought a postponement to enable him call his representative and the meeting was rescheduled to 7th February 2014. The Claimant submitted that the case for the Respondent was that he wrote seeking a postponement of the meeting and this was acceded to and the meeting was rescheduled to 19th February 2014. It was after he failed to attend the disciplinary meeting that the Respondent resolved to dismiss him summarily. The Claimant submitted that the issues for determination were whether the termination was procedurally fair, whether the Claimant was entitled to damages as prayed and who should pay the costs of the suit. He submitted that his termination was unfair and that the letter of 27th January 2014 did not seek the Claimant to defend himself as required under Section 41 of the Employment Act. He submitted that the service of the show cause letter dated 14th February 2014 upon Poline Muhanda inviting the Claimant to a meeting on 19th February 2014 and not following up as to whether it was received and then proceeding to hold a disciplinary meeting terminating his services did not meet the requirements of Section 41. The Claimant relied on the case of Alphonce Maghanga Mwachanya v Operation 680 Limited [2013] eKLRand Loice Otieno v Kenya Commercial Bank Limited [2013] eKLRwhere Radido J. determined the legal requirements of procedural fairness and held that employers must comply with the requirements in Section 41 even in circumstances where summary dismissal is contemplated. The Claimant submitted on substantive fairness and stated that the employer had a burden under Sections 43 and 45(2) and 45(5) of the Employment Act to prove the reasons for termination are valid and act with justice and equity. The Claimant submitted that these were not met and the dismissal was therefore unlawful. The Claimant submitted that he was thus entitled to the prayers sought in his memorandum of claim for payment of notice, service pay, damages and costs of the suit as the Respondent totally ignored the provisions of the law in termination of his services.

4. The Respondent submitted that the issues for determination were whether the Respondent had a valid and fair reason to terminate the Claimant’s employment, whether the Claimant’s employment was terminated in accordance to fair procedure and whether the Claimant is entitled to the prayers sought. The Respondent submitted that it received information from its students about the Claimant’s acts of gross misconduct and sought an explanation. The Respondent submitted that the Claimant failed to respond to this letter. The Respondent submitted that it carried out thorough investigations into the allegations raised and these pointed out to the truth of the allegations raised against the Claimant. The Respondent submitted that the Claimant had failed to prove his case and relied on the case of David Getare Nyangau v Houseman General Contractors Ltd [2013] eKLRwhich held that a party seeking a relief from court must prove that they are entitled to the relief sought. The Respondent submitted that the Claimant’s employment was terminated procedurally and that the Claimant was invited to a disciplinary hearing on 31st January 2014 which was deferred on request of the Claimant. The Respondent submitted that the Claimant was duly advised of his rights under Section 41 of the Employment Act and was informed that he was still an employee of the Respondent. The hearing was rescheduled to 7th February 2014 and later to 19th February 2014. The Respondent submitted that the Claimant responded to the letter rescheduling the hearing to 7th February through his lawyer’s demand letter. The Respondent submitted that it postponed the disciplinary meeting to give the Claimant ample time to prepare a defence and bring a representative to the hearing. The Respondent submitted that due to his absence at the hearings scheduled for 19th February 2014, the Panel determined that the Claimant’s services be terminated for absconding duty and on the allegations made against him. The Respondent submitted that through its generosity the salary for February 2014 was released to him in full even though he had not worked for that month. The Respondent submitted that the Claimant exhibited rudeness and failed to attend the disciplinary meeting. The Respondent relied on the case of BIFU v Barclays Bank of Kenya Cause 1660 of 2013 (unreported)where Mbaru J. held that the employer cannot be faulted when an employee invited to a disciplinary hearing fails to attend without any justifiable cause. The Respondent also relied on Section 44 of the Employment Act which made provision on the matters that amount to gross misconduct and justify summary dismissal. The Respondent submitted that the Claimant is not entitled to the prayers sought in the memorandum of claim as the Claimant had not proved his claim on a balance of probability. The Respondent relied on Section 49(4)(b), (k) and (m) for the proposition that the Claimant was not entitled to any compensation. The Respondent submitted that in the unlikely event that the Court found the procedure of termination of the Claimant was not fair, then the damages that could be awarded should not exceed 2 months as the Claimant had only worked for the Respondent for less than 2 years. The Respondent relied on the case of Joseph Kioko Mbithi v African Auto Suppliers Limited [2014] eKLR.

5. In coming to the decision herein, the Court has been guided by the pleadings of parties, the documents adduced as evidence as well as the submissions made and authorities cited. The Claimant’s case is that he was unprocedurally and without any colour or right dismissed from the Respondent. He was a teacher and had been accused of gross misconduct. The Respondent on its side stated that the Claimant was dismissed for good cause. The Claimant was given a letter dated 27th January 2014 and the letter required him to give an explanation. As of the 20th February 2014 when he was dismissed there was no letter in reply to the accusations made. In his submissions he states that he embarked on preparing a written memo explaining himself out (sic). Why was the reply not made? Why did he not respond to any of the allegations at all in spite of the lapse of time between the time the allegations were made and the date of dismissal? I find it curiously odd that he was very keen to have a representative and even sought legal counsel but persistently failed to respond to the accusations. In fact, he responded to a rescheduling of the disciplinary hearing with a demand letter from his advocate. If he had time to do this, why did he not respond to the allegations? Allegations under a show cause letter do not have a specific format and the Claimant’s attempt to impugn the letter of 27th January 2014 on form is without merit. He was given a couple of chances to attend a disciplinary hearing but he did not avail of them. He is the one who introduced an advocate to the equation and cannot therefore question the delivery of his mail to the advocate as he absconded from duty. The Respondent repeatedly reminded him he had not been terminated and was required to adhere to the terms of service but he failed to attend his workplace. The Claimant therefore lacked any basis to mount this case. He was even paid for the month of February 2014. He signed acknowledgement of payment of February pay on the letter dated 28th February 2014 on 1st March 2014. The Respondent has established basis for summary dismissal under Section 44 of the Employment Act and was generous enough to pay the salary for a month the Claimant was recalcitrant and obstinate in his refusal to either give explanation or attend his place of work. He makes an allegation that he was told not to attend the premises of the Respondent but has not shown any letter that he wrote seeking either audience with the administrator or the directors of the Respondent. The only letter he has is the demand letter penned by his advocate.

6. The upshot of the foregoing is that the Claimant’s case was not proved at all and is hereby dismissed. Each party to bear their costs.

Orders accordingly.

Dated and delivered at Nairobi this 30th day of September 2015

Nzioki wa Makau

Judge