[2019] KEELRC 1062 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAKURU

CAUSE NO.284 OF 2017

KENYA TERTIARY & SCHOOLS WORKERS UNION.........................CLAIMANT

VERSUS

ANANDA MARGA ACADEMY.............................................................RESPONDENT

JUDGEMENT

Issue in dispute – the wrongful dismissal of Meshack Osero Onchong’a

The claimant is a registered trade union representing Meshack Osero Onchong’a the Grievant.

Meshack Osero Onchang’a (grievant) is a teacher registered with the Teachers Service Commission and member of the claimant union. The respondent is an educational institution registered as a private entity under the Basic Education Act.

The grievant was employed by the respondent as a teacher on 12th May, 1997 at a wage of Ksh.3, 500. 00 per month. Such wage was increased over time the last being Ksh.9, 800. 00 from the year 2013. There was an underpayment contrary to the wage applicable to Teachers Service Commission registered teachers.

The grievant was summarily dismissed by the respondent contrary to the provisions of sections 41 and 43 of the Employment Act. there was no hearing or notice to the grievant. The claimant was informed and reported the matter to the Minister and a conciliator appointed but the dispute was not resolved.

The grievant had worked for the respondent for 18 years and 5 months and was not paid his dues benefits. The claims are as follows;

1. 12 days worked in October 2015 Ksh.15,747. 45

2. 2 months’ notice pay Ksh.56,854. 85

3. Salary underpayments

4. Service pay for the years 1997 to 2001 for non-payment of NSSF

5. 12 months compensation for wrongful dismissal

6. General damages and emoluments contingencies at 15% of wage

The grievant testified that he is a registered teacher by the TSC and upon employment by the respondent as a teacher on 12th May, 1997 he worked diligently last earning ksh.9, 800. 00 which was an underpayment. He was dismissed on 12th October, 2015 on false allegation and without being given a fair chance to give his defence and contrary to procedural justice and thus wrongful.

The grievant testified that he fell sick and when he came back to work the principal called him and gave him 15 minutes to clear and leave. That he had become sick in March, 2014 and went to hospital and the doctor gave him 3 days of rest and when he took the letter to the respondent he was allowed to take the rest days. Upon return he was issued with letter of summary dismissal.

He is owed the tabulated terminal dues under the Memorandum of Claim.

Defence

The respondent in response has denied the claims made by the claimant and further that it kept a register of hours at work and issued the claimant with several warning letter following misconduct for absenteeism and there was no wrongful dismissal. The claims made are not justified and should be dismissed.

The respondent has attached a detailed list of work records.

In evidence the respondent called Tineshkumar the Director and who testified that the respondent is a spiritual organisation non-profit and offering children in Kangemi informal settlement with basic needs. They have volunteer employees and the grievant was such a volunteer from February, 2001. The claims made are not due.

He also testified that the respondent’s Administrator reported that the grievant would be absent from his work station without permission. He would sneak back and when called to give account he had no good cause. He called the grievant over the matter and learnt that he was attending to another job at Yoga Centre on Wednesday s and Fridays. This was not allowed.

The respondent started taking work records and the grievant would be found absent.

It was also noted the grievant had double NHIF payments meaning he had another employer. The data for such payment is attached to the list of documents by the respondent. the Africa Yoga Project was paying NHIF for the grievant.

The respondent also found out that the grievant forged his Teachers training Certificate. It was false. it was not qualified under the Kenya National Examination Council and the alleged training institution when contacted stated the certificate was forged.

The respondent also found out the grievant forged his sick leave sheet. The alleged hospital and doctor did not issue the sick off sheet.

For these reasons the respondent established good grounds to dismiss the grievant. At the time he had damaged the property of the respondent when he realised that he would be dismissed he went to the classes and informed the students there would be no schooling the next year. The respondent lost 21 students as a result. The grievant also took school fees reminders from the students and tore them. such reminders were supposed to have been forwarded to the parents and therefore did not reach and the parents had no information of such reminders and thus did not pay the fees balances. When the respondent followed up directly with the teachers, they learnt from the students what the grievant had done.

The grievant was issued with verbal warnings but did not change. He was given a time for hearing and he did a written reply which was found not satisfactory. When asked why he was absent from work the grievant produced a sick sheet that was forged and continued sneaking out of the school. On 12th October, 2015 the respondent found the misconduct of absenteeism was gross and thus issued letter of summary dismissal. There was verbal hearing before such action was taken.

The director also testified that the grievant has continued to issue threats to the respondent.

The respondent also called Arthur Kahurani Nyoike the Accountant for the respondent and who testified that he had a volunteer’s contract. He worked with the grievant who was dismissed following gross misconduct. the students were issuedwith letters to their parents being reminders for fees balances but the grievant took them and tore them and never reached the parents as intended. When the parents failed to pay as required, there was follow up and discovery that the grievant had sabotaged these letters. The parents and students made these reports.

At the close of the hearing both parties filed written submissions.

In determination of the matter herein the court has put into account the pleadings, the evidence, the written submissions and the applicable law and the issues which emerge for determination can be summarised as follows;

Whether there is wrongful dismissal of the grievant; and

Whether the remedies sought are available.

By letter dated 12th October, 2015 the respondent dismissed the grievant on the grounds that by his letter dated 9th June, 2015 on his misconduct was not acceptable and following;

… been involved in other activities in school that are contrary to your terms and conditions of your employment i.e. you have not been singing the attendance register as required, being absent from duty without permission and sabotaging other school activities by snatching letters given to students meant for their parents reminding them of their fees arrears.

The grievants letter dated 9th June, 2015 is to the effect that;

This is to notify you that still I am under medication. I have not felt well yet. I hope I will be okay.

Yesterday lunch time I went back to hospital to be given treatment, I was unconscious and unable to stand.

I hope I will be okay.

I am very sorry for any inconvenience. …

The grievant has also letter dated 8th June, 2015, a sick off sheet by Pharmacy & Laboratory, P.O. Box 41-00625 Nairobi.

This sick off sheet is singed by medical attendant and stamped by Kangemi Urban Integrated Health Service and Pharmacy, P.O. Box … - 00100, Nairobi.

First, the response by the grievant is an admission he was absent from work as alleged by the respondent. he has given a reason as to his absence that he got sick and went to hospital.

Under section 30 and 34 of the Employment Act, 2007 and employee who is sick and unwell is allowed sick off however such an employee must present a medical certificate from a recognised medical facility. See Dorothy Ndungu versus Machakos University [2015] eKLR.

Secondly, the grievant has attached a sick off sheet from a facility that is signed and stamped by a different entity. In this case, where the grievant was absent from work for being sick and unwell and required to attend hospital the sick off sheet submitted is not accompanied by a medical certificate from a recognised medical facility and the record of sick off attached is foundationally unacceptable.

The grievant in his explanation states that he got sick over lunchtime on 9th June, 2015 and attended hospital to be given treatment. I was unconscious and unable to stand.The sick off sheet is issued on 8th June, 2015 a day before the grievant got sick. The sick off sheet is issued by an entity different from the entity which stamped the same document.

The sick off sheet is not a medical certificate envisaged under section 34 of the Employment Act, 2007.

The absence of the grievant at his place of work is without a justifiable explanation. He was issued with notice to explain his whereabouts by the employer and failed to do so. Summary dismissal of the grievant was justified under the provisions of section 44(4) (a) of the Employment Act, 2007. He cannot claim wrongful dismissal of employment.

Other than being dismissed for absence from work, other reasons related to the grievant sabotaging other school activities by snatching letters given to students meant for their parents and being reminders for school fees. The grievant has not given any reasonable defence in this regard save for mere denials. On the evidenceby the respondent and their being no reasonable defence, the evidence of the grievant sabotaging the activities of the respondent stands uncontroverted. Such conduct looked at on the face of the provisions of section 44 of the Employment Act, 2007 amounts to a fundamental breach of the terms and conditions of employment and result in summary dismissal.

In this regard, the court finds the dismissal of the grievant was justified.

On the remedies sought the claim for under payment and based on the TSC schedules for teachers and or the wage regulations. in the private sector schools there are no wage guidelines and the grievant was paid in accordance with the contract of employment and which under clause 3 (salary) there was provision for a consolidated wage. See Jairus Ochieng Ojwang versus Bridge International Academies, Cause No.496 of 2017 (Nakuru).

Notice pay and compensation are remedies not due in a case where summary dismissal is found justified.

On the claim for service pay for 4 years from 1997 to 2001, the evidence apparent on the record is that the respondent paid the due statutory dues for the grievant and further, the claims relating to the years of 1997 to 2001 are made contrary to the provisions of section 90 of the Employment Act, 2007 for being time barred. When these dues are alleged to have arisen, where due, such ought to have been addressed within 3 years. such time is way past. For the reasons the respondent is compliant by paying the due statutory dues at the time of summary dismissal, such claim is lost.

On the remedy for general damages, no good cause has been set out as to why such a claim is made.

Before final orders issue, the respondent’s case is that the grievant has continued to issue threats to the respondent and continues to sabotage its operations. Such are criminal activities and must be addressed to the nearest police station without further delays. Where the respondent has incurred loss, damage and any material damage, a civil claim before the appropriate court should be attended as appropriate.

In this regard, the claimant as the representative of the grievant is enjoyed to give counsel for the stoppage of any threats by the grievant to avoid further harm to the respondent and its operations. Such counsel is imperative in this context.

Accordingly, the claimant’s case is found without merit and is hereby dismissed with costs to the respondent. Such costs are hereby assessed by the court all at Ksh.50, 000. 00 and such to be paid within 60 days.

Delivered in open court at Nakuru this 11th July, 2019.

M. MBARU JUDGE

In the presence of:

Court Assistants: …………………………… & ……………………………

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