[2003] KEELRC 23 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.,

A.K. Kerich & J.M. Kilonzo, Members.)

CAUSE NO.72 OF 2001.

KENYA BUILDING, CONSTRUCTION, TIMBER,FURNITURE &

ALLIED INDUSTRIES EMPLOYEES’UNION..................................................Claimants.

v.

PREMIER CONSTRUCTION LTD...............................................................Respondents.

Issue in Dispute:-

“Dismissal of Mr. Enock Nyamola Koga” (hereinafter called the grievant).

J.M. Maina for the Claimants (hereinafter called the Union).

A.M. Khamala, Advocate, of Yano & Co., Advocates, for the Respondents (hereinafter called the Company).

A W A R D.

On 26th July, 2001, the Minister for Labour referred this dispute to the Courtfor consideration and determination under powers vested in him by Section8 of the Trade Disputes Act, Cap.234, Laws of Kenya (which is hereinafter referred to as the Act); and his reference, together with the statutory certificates from the Labour Commissioners and the Minister himself under Section 14(9) (e) and (f) of the Act, were received by the Court on 2nd August, 2001. The dispute was then listed for mention on 24th August, 2001, when Messrs. D.G. Mucheru and L.W. Kariuki, who appeared for the parties respectively, were directed to submit or file their respective written memoranda or statements on or before 28th September and 29th October, 2001, and the dispute was fixed for hearing on 20th December, 2001. The Union submitted its memorandum on 28th September, 2001, and the Company belatedly filedits reply statement on 13th March, 2002. The dispute was heard on 5th June, 2002.

The grievant was employed by the Company as a spindle machine operator in May 1991 at a monthly salary of Kshs.2,600/=, and he was verbally or orally dismissed from employment on or about 9th August, 1994, for allegedly absenting or absconding himself from duty for 8 days, without leave or permission, i.e. from 1st to 8th August, 1994. At the time of his dismissal as aforestated, he was earning a salary of Kshs.3,900/= a month. The partiesmet and attempted to resolve the matter at their own level but failed; and on 31st January, 1995, the Union reported a formal trade dispute to the Minister for Labour in accordance with Section 4 of the Act. The Minister accepted the dispute and appointed Mr. Gichohi of Nyayo House Labour Office to act as the Investigator. On 12th October, 1998, the Minister released his report to the parties, in which he found and recommended, inter alia, as follows:-

“FINDINGS.

………………………………………………………………………………..

…………………….. on 1st August, 1994, the grievant and his brother were granted leave in order to attend the funeral of a relative. After resuming on duty on 8th August, 1994, the grievant was barred from working. On 15th September 1994, the grievant’s services were terminated after the management deposited at the Labour Office a sum of Ksh.3,900/= being payment of one month’s salary in lieu of notice…………….. the management’s allegation that the grievant had absconded duties was a mere fabrication.

……………….. the management allegation that the grievant was a habitual absentee had no basis since it was neither substantiated nor any evidence adduced.

……………. the grievant had worked for 3 years. The termination of service was therefore unlawful and unjustified.

RECOMMENDATION.

…………………………………………………………………………………….

……………… it is recommended that Mr. Enock Koga be paid all his terminal benefits under normal termination of service. In addition, he should be paid two months’ salary as compensation

for wrongful termination.

The Minister finally appealed to the parties to accept the recommendationas a basis of settlement of this matter. The Union accepted the recommendation, but the Company rejected it simply on the ground thatthe grievant was not wrongfully dismissed or terminated as alleged by the Union (see Union Apps. I, II and III).

Mr. Maina for the Union submitted that the dismissal of the grievant, who had served the Company for 3 years and 3 months with a clean or unblemished employment record, was wrongful, unfair and unwarranted in view of the fact that he was granted permission to attend a funeral of his relative. The action taken by the Company was also against the principles of natural justice. Under the circumstances, Mr. Maina prayed that the grievant be either reinstated to his job, without loss of salary and other benefits; or, in the alternative, he be paid the following terminal dues:-

1. 2 month’s pay in lieu of notice:

Kshs.3,900/= x 2. = Kshs.7,800/=.

2. Accrued leave for 2 years:

Kshs.3,900/= x 2. = Kshs.7,800/=.

3. Gratuity for 3 years:

Kshs.3. 900/= x 10 days x 3 years:= Kshs.4,500/=.

26 days.

4. 12 months’ compensation:

Kshs.3,900/= x 12. = Kshs.46,800/=.

TOTAL= Kshs.66,900/=.

Mr. Khamala, the learned counsel for the Company, resisted the demand mainly on the grounds that the Union was a stranger as it did not have anyrelationship with the Company; that the grievant was never a member of the Union during the period of his employment with the Company, and as such he was bound by his individual contract of employment and the Union has no locus standi to either raise this dispute or represent him; that the grievant frequently absented or absconded himself from duty without leave or permission, and thus inconvenienced the Company’s operations; that the grievant had utilized all his leave days for which he was paid, and that the grievant was not entitled to any damages.

Mr. Khamala, therefore, prayed that the demand by the Union be rejected, and that the grievant be advised to collect his terminal benefits of Kshs.3,900/=, which was deposited with the Industrial Area Labour Office.

It was not denied that the grievant had worked for the Company, with a clean employment record, for the said period of 3 years and 3 months, and as such he was a permanent employee. He was verbally or orally dismissed from employment on or about 9th August, 1994, allegedly for absenting or absconding himself from duty for 8 days, without leave or permission. The Company objected to or opposed the demand mainly on the ground that theUnion has no locus standi to either raise this dispute or represent the grievant because it (Company) did not have any relationship with the Union. The status of the Union as a registered union has not been denied, and in the circumstance its representative capacity or competence to raise this dispute and represent the grievant cannot be questioned at this stage. Otherwise too, the management of the Company should have remembered that an order in writing was necessary to remove the grievant, who was a permanent employee, from service or employment, and that no order of dismissal to the prejudice of the grievant should have been passed without giving him due hearing. The rule of audi alteram partem (no one should be condemned unheard) is so firmly entrenched in our legal jurisprudence that no liberties can be taken away with impunity. That, by itself, is enough to quash the impugned verbal or oral order of dismissal of the grievant as the same was mala fide and bad in law. The minimum norms of justice and fair play are not confined to the proceedings in the corridors of Courts of law only. These extend to, as was said in relation to a right of hearing by the late and noble Lord of the Supreme Court of Pakistan, Mr. Justice M. Shahabuddin,who later on became the Chief Justice of Pakistan, in the case of Chief Commissioner, Karachi & Others v. Mrs. Dina Sohrab Katrak, PLD 1959 SC (Pak.) 45, all proceedings, bywhomsoever held, which may affect the person, the property or other rights of the parties concerned in the dispute. The allegation of absence without leave or permission against the grievant is a misconduct under Section 17 (a) of the Employment Act, Cap.226, Laws of Kenya, for which an inquiry is necessary. In the present case, however, I find that no inquiry was held in which the grievant was to be given an opportunity to explain the circumstances alleged against him. In my view, therefore, the dismissal of the grievant without affording him an opportunity as aforestated was arbitrary and capricious.

In the result, and considering the lapse of almost 9 years since the grievant was summarily dismissed from service, I am firmly persuaded that the grievant is entitled to normal termination of service and two months’ notice pay and gratuity under Rule 19(1)(c) and (d) of the Regulation of Wages (Building and Construction Industry) Order, 1994 (Legal Notice No.70 of 1994), which provides as follows:-

“19(1)……………………………………………………………………

(a)……………………………………………………

(b)……………………………………………………

(c)in the case of an employee who has completedthree years’ continuous service with an employer, the contract shall be terminable by not less than two months’ notice in writing to be given by either party or otherwise by payment by either party in lieu of notice of not less than two months’ wages; and

(d)in the case of an employee’s services being terminated at the initiative of the employer after completion of two years’ continuous service, such employee shall be entitled to payment at the rate of ten days’ salary for every completed year of service by way of gratuity to be based on the employee’s wages at the time of termination of his services.

(2)…………………………………………………………………………………….”

As compensation is discretionary, I am inclined to award 9 months’ salary as compensation for loss of employment. The grievant is, however, not entitled to leave pay because the documentary evidence on the record shows that he went on leave at the material time for which he was paid.

Accordingly, I AWARD and ORDER that the grievant be paid the following terminal benefits:-

(i)2 months’ pay in lieu of notice:

Kshs.3,900/= x 2. = Kshs.7,800/=.

(ii) Gratuity: Kshs.3,900/= x 10 days x 3 years: = “ 4,500/=.

26 days.

(iii) 9 months’ compensation:

Kshs.3,900/= x 9. = “ 35,100/=.

Total = Kshs.47,400/=.

Both members of the Court are in agreement with this decision.

DATED and delivered at Nairobi this 13th day of June, 2003.

Charles P. Chemmuttut,

JUDGE.