[2018] KEELRC 2357 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 1851 OF 2017

JOHN SIGURA OTIDO..................................................CLAIMANT

v

ENERGY REGULATORY COMMISSION.......1st RESPONDENT

PAVEL R. OIMEKE.............................................2nd RESPONDENT

RULING

1. John Sigura Otido (applicant) was employed as Head of Security by the Energy Regulatory Commission (1st Respondent) on 26 June 2015.

2. On 6 September 2017, Pavel R. Oimeke (2nd Respondent), the acting Director General of the 1st Respondent wrote to the applicant informing him that he was being interdicted to facilitate investigations into allegations that he (applicant) had been involved in acts of extortion and intimidation of some of the 1st Respondent’s licensees.

3. On 15 September 2017, the applicant sued the Respondents and he stated the Issue in Dispute as Unfair illegal and unlawful interdiction of the Claimant.

4. Filed together with the Memorandum of Claim was an application under certificate of urgency seeking orders

1. …

2. THAT this Honourable Court be pleased to issue stay of the Respondent’s Interdiction letter to the Claimant dated 6th September 2017 and referenced ERC/HR/PF099 pending the hearing and determination of this application.

3. THAT upon grant of prayer 2 above this Honourable Court does order that the Claimant be reinstated at the Respondent pending the hearing and determination of this application.

4. THAT upon grant of prayer 2 and 3 above, this Honourable Court does order that the Claimant has full and unimpeded access to his office together with all tools necessary for him to execute his duties as a bona fide employee of the 2nd Respondent.

5. THAT this Honourable Court be pleased to issue any such further orders it may deem fit and convenient in the circumstances of this case.

6. THAT costs of this application be provided for.

5. When the application was placed before the Duty Judge on 20 September 2017, the application was certified urgent, and the applicant was directed to serve the Respondents for inter partes hearing on 4 October 2017.

6. The application did not proceed to hearing on 4 October 2017 as the Respondents sought for time to file responses and therefore hearing was rescheduled to 17 October 2017. The hearing was again rescheduled, to 31 October 2017.

7. On 31 October 2017, the Respondents proposed and the applicant agreed that written submissions be exchanged.

8. The submissions were not filed within the agreed timelines.

9. On 16 November 2017, the Respondents (after conclusion of investigations) issued to the applicant a Notice to Show Cause to make representations within 7 days on the allegations outlined in the notice.

10. On 21 November 2017, the applicant filed another motion under certificate of urgency seeking orders that

1. …

2. Pending hearing and determination of the application dated 15th September 2017 and the Claim, an order of stay be issued against the 2nd Respondent’s letter dated the 16th November 2017.

3. In the alternative to prayer 2 above, temporary stay of execution of the 2nd Respondent’s letter dated the 16th November 2017 be issued pending the mention of the matter herein before the Honourable Justice Nzioki wa Makau on the 30th November 2017.

4. An order of cease and desist be issued against the Respondents from harassing, intimidating and or frustrating the Claimant’s life while out on suspension.

5. Costs of this application be provided for.

11. This application was placed before the Duty Judge on 21 November 2017, and it was referred to this Court for directions on 27 November 2017.

12. On 27 November 2017, none of the parties appeared in Court and this latter application was stood over generally.

13. On 30 November 2017, Nzioki wa Makau J directed the Respondents to file replies to the motion filed in Court on 21 November 2017 and directed that it be heard on 13 December 2017. In the meantime, the Judge stayed the show cause letter.

14. Due to misapprehensions on the directions which had been given earlier, the application could not proceed on 13 December 2017, and the Court directed that both applications be canvassed on 19 December 2017.

15. On 19 December 2017, the applications were placed before the Duty Judge and she directed that the file be mentioned on 30 January 2018, when the Principal Judge directed that the file be placed before me, as Nzioki wa Makau J had been transferred to another station.

16. The parties eventually highlighted the submissions before me on 8 February 2018. The Court has considered the material placed before it including case law.

Applicant’s contentions

17. According to the applicant, his interdiction was contrary to the Human Resources Policies and Manual for the Public Service, 2016and therefore unconstitutional.

18. The applicant also faulted the interdiction on the ground that he was not afforded an opportunity to make representations prior to the decision, and that the 2nd Respondent had no authority to interdict him.

19. In the view of the applicant, the interdiction was a sanction which should not have been meted before he was afforded an opportunity to be heard.

20. The applicant further contended that the interdiction was actuated by malice and was devoid of natural justice as the accuser, the prosecutor and judge were the same.

Respondents’ rebuttal

21. In rebutting the contentions presented by the applicant, the Respondents urged that the interdiction was lawful because it was predicated in clause 11. 8 of the Human Resource Policies and Procedures Manualwhich authorised the Director General to interdict an employee to facilitate investigations.

22. In the view of the Respondents, the application was an attempt by the applicant to pre-empt the investigations and it was not the duty of the Court to stifle an employer’s internal investigative and disciplinary processes.

23. In any case, the Respondents submitted that the whole process was time bound and that it had completed investigations and issued the applicant with a Notice to Show Cause, which notice formally commenced the disciplinary process.

Evaluation

Contractual authority to interdict

24. Suspension (term used loosely too include interdiction) of an employee, within the employment relationship, generally under the common law must have a contractual basis. Without the contractual authority, unilateral suspension by the employer with or without pay would constitute breach of contract (see McKenzie v Smith (1976) IRLR 345.

25. In the instant case, clause 11. 8 of the 1st Respondent’s Human Resource Policies and Procedures Manual allow the Director General to interdict an employee on terms, to facilitate investigations into serious disciplinary cases to pave way thereafter for disciplinary proceedings if warranted.

26. In terms of the Manual, the formal disciplinary process is triggered by a Notice to Show Cause, which was issued.

27. The interdiction under the clause therefore cannot be equated to the interdiction as a sanction in clause 11. 2 of the Manual. The two clauses therefore ought to be read disjunctively.

28. The Court finds that the Respondents had contractual authority to interdict the applicant and that the Notice to Show Cause was equally anchored on contractual provision and a statutory requirement in terms of section 41 of the Employment Act, 2007.

Hearing before interdiction

29. The applicant asserted that he should have been afforded an opportunity to be heard before he was interdicted.

30. The contractual documents presented before Court did not provide for any such right.

31. It is also not clear under our statutory framework whether the right to a hearing is a prerequisite before suspension/interdiction.

32. It is in fact open to debate whether such right may be founded on the constitutional right to fair labour practices, because it is not founded in any general Statute here, unlike in South Africa.

33. In terms of section 41 of the Employment Act, 2007, the right to a hearing or procedural fairness (akin to natural justice in administrative/public law), accrues when an employer has made a decision that it intends to bring the contractual relationship to an end on the grounds of misconduct, poor performance or physical incapacity.

34. In the view of the Court, it cannot be said that it is probable that an employer who causes investigations to be carried out in order to establish the facts has formed an opinion to bring the employment to an end. The investigations could as well vindicate the employee.

35. I am comforted in the conclusion reached in consideration of the persuasive authority of McLory v Post Office (1993) IRLR 159 that

it was not necessary to imply a term into a contract of employment that the employer had to give the employee the reasons for his suspension before suspending him.

36. In any case, the applicant did not demonstrate or draw the attention of the Court to any contractual or legal provision or principle requiring a hearing before the interdiction.

37. In overall, the applicant did not show a prima facie case.

38. Before concluding, the parties may wish to look up developing case law on the question of hearing before suspension/interdiction and when the Court may interfere in the disciplinary process in 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)

39. 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.

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

Conclusion

41. In light of the above, the Court finds no merit in the applications presented by the applicant and orders that both be dismissed with costs to the Respondents.

Delivered, dated and signed in Nairobi on this 23rd day of February 2018.

Radido Stephen

Judge

Appearances

For applicant Mr. Okoth instructed by Okoth & Co. Advocates

For Respondents Mr. Otachi instructed by Ogetto, Otachi & Co. Advocates

Court Assistant Lindsey