[2003] KEELRC 13 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Coram: Charles P. Chemmuttut, J.,

A.K. Kerich & H.B.N. Gicheru, Members.)

CAUSE NO.98 OF 1999.

KENYA PLANTATION & AGRICULTURALWORKERS’ UNION.....................................................Claimants.

v.

KENYA TEA DEVELOMPMENT AUTHORITY(now KENYA TEA DEVELOPMENT AGENCY).........Respondents.

Issue in Dispute:

“Termination of services of Messrs Samwel Moruye and Zachary O. Osero of Ogembo Leaf Base” (hereinafter called the first and second grievants.)

F.K. Waweru, Deputy General Secretary, for the Claimants (hereinafter called the Union).

L.W. Kariuki, Senior Executive Officer, F.K.E., for the Respondents (hereinafter called the Agency).

A W A R D.

On 13th October, 1999, the Minister for Labour referred this dispute to the Court for consideration and determination under powers vested in him by Section 8 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 Commissioner and the Minister himself under Section 14(9)(e) and (f) of the Act, were received by the Court on 29th October, 1999. The dispute was listed for mention on 17th November, 1999 when Messrs. Waweru and Kariuki, who appeared for the parties respectively, were directed to submit or file their respective written memoranda or statements on or before 17th December, 1999, and 17th January, 2000, and the dispute was fixed for hearing on 1st March, 2000. Mr. Waweru submitted his memorandum on 16th December, 1999, andMr. Kariuki belatedly filed his reply statement on 7th June, 2000. Meanwhile, the dispute suffered several adjournments and was consequently heard on 13th February, 2001.

At the commencement of the hearing of this dispute, Mr. Waweru applied to withdraw the dispute in respect of the first grievant on the ground that he had instituted a civil case No.383 of 1997 against the Agency in the Chief Magistrate’s Court, Kisii, which was decided in his favour and awarded Kshs.300,000/= compensation on 22nd January, 1999, for loss of employment.

Since the first grievant chose to institute a civil case against the Agency in the regular Court, he cannot, therefore, be allowed to invoke the jurisdiction of this Court; and under the circumstances, I allow the application by Mr. Waweru for withdrawal of his case and dismiss the same as withdrawn.

The second grievant was employed by the Agency in 1984 as a watchman, and was subsequently promoted to a Leaf Collection Clerk. On 9th November 1993, he was suspended from duty for allegedly falsifying green leaf records to his credit (see Agency’s Apps. I to IV). On 23rd January, 1995, the Agency agreed to reinstate the second grievant to his job with continuity of service, but two days later, i.e. on 25th January, 1995, the Union reported a trade dispute to the Minister for Labour. On 15th March, 1995, his suspension was lifted on condition that he would “not be eligible for any payment for the period served under suspension”, otherwise all his other terms and conditions of employment remained thesame (see Union Apps. B, C and D). On 9th June, 1995, the second grievant was terminated from employment on the same ground that he had falsified green leaf records to his credit, No.09510006. (see Agency App.V). At the time of his termination, the second grievant was earning a salary of Kshs.3,720/= per month.

Mr. Waweru submitted that the charges against the second grievant were trumped up and false, and his termination from service was, therefore, made in bad faith and amounted to victimisation because of personal differences or disagreements between him and the Manager. In the circumstances, Mr. Waweru prayed that the second grievant be paid his full terminal benefit; and, in addition, maximum, i.e. twelve (12) months, compensation for premature loss of employment.

The case of the Agency was that the second grievant actually and dishonestly committed the offence of falsifying the green leaf records to his credit for the financial year 1992/3, and his action amounted to gross misconduct punishable by summary dismissal. He was, however, treated leniently by termination of his services, with full terminal benefits which he declined to collect. Accordingly, Mr. Kariuki urged the Court to uphold theaction taken by the Agency against the second grievant.

It is not denied that the second grievant was suspended from service on 9thNovember 1993, for alleged falsification of green leaf records to his credit. But his suspension was lifted on 15th March 1995, and he was advised “that you will not be eligible for any payment for the period served under suspension and that all your other terms and conditions of employment remain the same” (see Union App.B). The certificate of agreement, dated 23rd January, 1995, also shows that the second grievant was to be reinstated to his job with “continuity of service” from the date of his appointment, but without any payment for the period under suspension (see Union App.D).

The suspension of an employee is a matter which directly hits his terms and conditions of service and affects his remuneration. Under the circumstances, the Union can come forward and challenge before the Court that the suspension is arbitrarily ordered and as such the terms of employment of the employee have been affected or that the suspension is not warranted by the terms of his employment. All these matters certainly fall under the definition of a “trade dispute” in Section 2 of the Act, which states that:-

‘ “trade dispute” means a dispute or difference between employers and employees or between employees and employees, or between employers and trade unions, or between trade unions and trade unions, connected with employment or non-employment, or with the terms of employment, or with the conditions of labour, of any person and includes disputes regarding the dismissal or suspension of employees, the redundancy of employees, allocation of work or recognition agreements; and it also includes an apprehended trade dispute’.

The order suspending the second grievant stated, inter alia, that “………….. it has been decided that you are placed under suspension from the date hereof till further notice”. There is nothing in the suspension order and no provision of law was shown to me under which the Agency could deprive the second grievant of his pay for the period that he was under suspension. It was open to the Agency to charge-sheet him or take such action as it deemed necessary, but it could not keep the second grievant under suspension for 1 year and 4½ months, i.e. from 9th November, 1993 to 15th March 1995, and deprive him of his pay.

As stated hereinabove, the suspension of the second grievant was unconditionally lifted on 15th March, 1995, and he was reinstated to his job

with “continuity of service”. This means that his services were not broken or interrupted by the suspension of the contract of employment. He was, however, terminated on 9th June 1995, on the same grounds which led to his suspension on 9th November, 1993. I am of the view that the second grievant could not have been terminated on the same grounds which occasioned his suspension that was unconditionally lifted as aforestated, and under the circumstances I find that the termination was unlawful and unfair. Accordingly, I AWARD and ORDER that the second grievant be paid all his terminal benefits from 9th November 1993 to-date in terms of the collective agreement in force at the material time of the unlawful and unfair termination. In addition, he be paid maximum compensation, i.e. twelve (12) months’ salary, based on the last pay when he was unlawfully and unfairly terminated, for loss of employment.

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

DATED and delivered at Nairobi this 10th day of June, 2003.

Charles P. Chemmuttut,

JUDGE.