[2017] KEELRC 238 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 1142 OF 2015

JULIANA MUSENGYA MICHAEL………..………CLAIMANT

VERSUS

RIFT VALLEY RAILWAYS (KENYA) LTD.........RESPONDENT

JUDGEMENT

1. The claimant averred that she was employed by the respondent on 20th October, 2006 as a Assistant Station Master Grade RG9. She worked faithfully and diligently upto 23rd May, 2014 when she claimed her employment was unlawfully terminated by the respondent on the accusation that she signaled the driver of locomotive 9313 while at the station cabin contrary to standing instructions which required Station Master to meet locomotive at the stop board and driver required to sign the Bar line book before moving past the stop board and as a result locomotive 9313 and locomotive 6255 has an averted collision.

2. She further pleaded that disciplinary proceedings were conducted on 18th February, 2014 and she gave her defence but the respondent went ahead and terminated her services. According to her, no averted collision took place as alleged.

3. The respondent on its part pleaded that the claimant was its employee and her responsibilities included ensuring safe working of trains at all times through correct working of all signals and recording of when trains working signals or messages are sent or received in the appropriate train register book.

4. According to the respondent, the claimant performed her duties negligently in breach of operational regulations and employment contract. The respondent further pleaded that on 10th February, 2014 an incident occurred in which locomotive 6255 was at stunting neck whilst locomotive 9313 was at the bar line. The claimant was the Station Master on duty on the material day. Investigations established that the claimant signaled locomotive 9313 past sop board before stopping the stunting movement cont5rary to the standard operating procedure.

5. The respondent pleaded that following the incident, the claimant was issued with a show cause letter highlighting the allegations against her. The claimant responded to the show cause and was thereafter invited to attend a disciplinary hearing on 18th February, 2014. The claimant was further informed that she was free to choose a representative to accompany her. At the trial only the claimant attended and gave evidence. The respondent though served never attended court for the hearing.

6. In her oral evidence she stated that she told the driver of locomotive number 9313 to stop but the driver did not stop. The driver also did not sign the bar line book. It was further her evidence that the Yard Master did not inform her of an incoming locomotive. She denied signaling the locomotive driver. It was further her evidence that she gave an explanation of what happened in writing an was called for a disciplinary hearing. She further stated that Mr Chumba, the locomotive driver was never called to give evidence.

7. She stated that such an incident must be reported and the locomotive must not move until cleared. According to her the incident was never recorded since there was no incident to record. It was her evidence that she was not paid her terminal dues upon termination.

8. In claim for unlawful dismissal and unfair termination of services, the burden of proof of reason for termination is on the employer. The respondent herein was served with the hearing notice but never attended court. The reason for the claimant’s dismissal therefor remains not proved. The claimant has disputed the validity of reasons for the dismissal.

9. The court therefore has no alternative but to believe her version of events. The court therefore enters judgement against the respondent as follows:

a. One month’s salary in lieu of notice 51,062. 94

b. Eight months salary as compensation

for unfair dismissal 408,503. 94

c. Accrued leave for one month 51,062. 94

510,629. 40

d. Costs of the suit

10. Items (a) (b) and (c) shall be subject to statutory deductions and less payments already made on account of terminal benefits.

11. It is so ordered.

Dated at Nairobi this 1st day of December 2017

Abuodha J. N.

Judge

Delivered this 1st day of December 2017

In the presence of:-

…………………………………………...…… for the claimant

……………………………………………. for the Respondent

Abuodha J. N.

Judge