[2018] KEELRC 1306 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 230 OF 2014

(Before Hon. Lady Justice Maureen Onyango)

JOSEPH OJWANG JOWI....................................................................CLAIMANT

-VERSUS-

SPECTRE INTERNATIONAL LIMITED....................................RESPONDENT

JUDGMENT

The claim herein was filed by the plaintiff JOSEPH OJWANG OJOWI who avers that he was employed by the defendant as a casual in 2006 and confirmed in regular employment by letter dated 26th February 2009 as a Maintenance Assistant. His salary at the time of confirmation was Kshs.12,000 consolidated. He was earning Kshs.23,000 at the time his employment was terminated on 5th August 2013.

The claimant prays for the following remedies –

a) General damages

b) Salary in lieu of dismissal

c) Loss of expected earnings as a result of the dismissal.

d) Costs of this suit.

The defendant filed a statement of defence denying the allegations of the plaintiff save that he was employed by the defendant by contract of employment dated 26th February 2009 for a period of one year.

At the hearing of the case the plaintiff testified on his own behalf while the defendant called two witnesses – MR. ALLAN PEREZ AYODI NENGO, the Industrial Relations Manager DW1 and CRISTOPHER NYALERO NGWARE a Security Supervisor. The parties thereafter filed and exchanged written submissions.

Facts of the Case

Two 500 ml bottles of what was believed to be ethanol were found on the carrier of the plaintiff’s bicycle parked at the defendant’s parking outside the gate. He was called from where he was working by two security guards who questioned him about the two bottles but he denied any knowledge of who put them on his bicycle carrier. He was then taken to the office of the Human Resource Director, Union shop officials were called and the claimant was asked why he was in possession of company products without permission. The claimant confirmed the bicycle was his but denied any knowledge of the two bottles found on his bicycle carrier. The claimant was then asked to wait outside while the “disciplinary committee” decided his case. He was later issued with a letter of summary dismissal.

The issues for determination are –

1) Whether the dismissal of the claimant was valid

2) Whether the claimant is entitled to the remedies sought.

Fair Dismissal

Section 41 of the Employment Act provides for the procedure before termination of employment contract while Section 43 provides for proof of valid reason for termination. Section 45 provide that where the employer fails to prove either fair procedure or valid reason for termination, the termination is unfair.

In the present case the Security Supervisor DW2 testified that he was called by a colleague who told him to go and see what was on the carrier of the claimant’s bicycle. DW2 went and called the person in charge of the company that was providing guarding services to the respondent, RFSL who accompanied him to where the claimant’s bicycle was parked. They found two 500 ml bottles in the carrier of the claimant’s bicycle at the respondent’s bicycle parking bay. He called the claimant from the plant but the claimant denied any knowledge of the bottles. The claimant again denied knowledge of who put the bottles on his bicycle carrier when he was asked about them at the office of the Human Resource Director.

There is no evidence that what the claimant was found with was ethanol from the company. There is further no evidence that it is the claimant who put the bottles on his bicycle carrier in the parking. DW2 testified that the bicycle bay is next to the gate and is locked up after everybody parks. The person who told DW2 about the two bottles on the bicycle carrier was not called to testify about how he learned about the bottles on the carrier. The parking bay is accessible to many and was not manned.

No statement written by any of the people who were alleged to have written statements during investigations were produced in court. I thus find that there is no proof that the bottles found on the carrier of the claimant’s bicycle were placed there by the claimant.

On the procedure, Section 41 requires that an employee is given a hearing in the presence of either a colleague or a union officials of his choice. In this case the union officials were called by the respondent and the claimant found all of them in the office of the Human Resource Director. He did not have an opportunity to choose who to represent him. He further did not have time to prepare his case or to consult or even explain to those union representatives what had transpired. They could not therefore be representing him at the meeting if they had not been given a briefing by the claimant.

The whole process was also rushed. RW2 learnt about the bottles on the carrier of the claimant’s bicycle at around 10. 00 a.m. RW1 explained as follows – “He was called to Human Resource Office and the union officials were also called and he was asked to defend himself against charges that he was found with company products without permission. The alcohol was on his bicycle. He stated that the bicycle was his but he said he did not know who had put the alcohol on his bicycle. The decision was that since the alcohol had been found on the carrier of his bicycle and he had gone out, it was assumed he is the one who had put it there. Since the theft of company products was rampant it was taken as an example to others.”

By the end of the same day, a hearing had been held, statements had been written, a decision made to dismiss the claimant and a letter of dismissal issued. The claimant had no time to consult. He was not presented with any written charges to understand what he was charged with.

Such a process cannot be fair within the provisions of Section 41 of the Employment Act. It was an ambush to the claimant. Before he understood what was going on he was out of employment.

As was stated in the case of NICHOLUS MUASYA KYULA -V- FARM CHEM LIMITED “It is not sufficient for the employer to make allegations of misconduct against the employee. The employer is required to have internal systems and process of undertaking administrative investigations and verifying the occurrence of the misconduct before a decision to terminate is arrived at.”

Again in the case of WALTER OGAL ANURO -V- TEACHERS SERVICE COMMISSION [2013] the court state “…for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination.”

In this case I find that both tests were not met by the respondent with the effect that the summarily dismissal of the claimant was unfair both procedurally and substantively. I declare accordingly.

Remedies

The claimant prayed for three months’ notice. His contract provides for 21 days’ notice which is below the one month’s notice provided for in the Employment Act. Having found the termination of the claimant’s employment unfair, I award him one month’s salary in lieu of notice in the sum of Kshs.23,716.

The claimant is also entitled to salary for days worked being five days of August 2013. I award him Kshs.3,953. Having worked for the respondent from 2006 to 2013, a period of about 7 years served partly on casual terms up to 2009 when the claimant was confirmed and issued with an employment contract, I award the claimant seven month’s salary in the sum of Kshs.166,012 compensation taking into account the manner in which his employment was terminated, the withholding of this terminal dues and the length of his service.

The withheld salary will attract interest from date when it was due being date of termination on 5th August 2013. The rest of the award will attract interest from the date of judgement.

The reason I am penalising the respondent to pay interest from date of dismissal is that Section 18(4) provides that where an employee is summarily dismissed he shall be paid all moneys, allowances and benefits due to him upon dismissal. In this case the claimant was required to clear before payment. In his testimony he stated as follows during cross-examination –

“I have not cleared because they refused to give me the clearance form. At the time I had a lot of financial problems I went to Mr. Nengo who sent me to Mr. Ortega. Mr. Ortega told me to go to Nengo again. They were sending me from one to the other. I saw they were playing with me so I kept off.”

Mr. Nengo DW1 on his part stated –

“We did not pay because he did not clear. Once he submits clearance form he will be paid. The clearance was communicated in the termination letter….. That is a procedure known to all employees. We informed him verbally.”

If the process was clear, why was the claimant informed verbally. Why was the clearance form not attached to the letter of summary dismissal with instructions to the claimant to clear before he is paid? Why was the claimant sent back and forth between Mr. Ortega and Mr. Nengo if not to frustrate him?

It is for these reasons that I have awarded the claimant interest from the date when payment of the salary was due.

The claimant shall also be paid his benefits under the respondent’s Retirement Benefits Scheme with interest calculated up-to-date based on the withdrawal terms of the scheme.

The respondent shall further bear the claimant’s costs for this claim.

DATED AND SIGNED AT NAIROBI ON THIS 4TH DAY OF JULY 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED AT KISUMU ON THIS 30TH DAY OF JULY 2018

MATHEWS NDERI NDUMA

JUDGE