[2023] KEELRC 2622 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Kenyatta National Hospital (Cause 673 of 2019) [2023] KEELRC 2622 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2622 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 673 of 2019

NJ Abuodha, J

October 27, 2023

Between

Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers

Claimant

and

Kenyatta National Hospital

Respondent

Judgment

1. In the Amended Statement of Claim dated 3rd September 2021, the grievant one Mr. Martin Ocharo pleaded that he was engaged by the Respondent as Medical Laboratory Technologist on 27th January, 1999 earning a gross salary of Kshs. 131,732/= per month which included basic salary Kshs 70,992/=, rental house allowance Kshs 28,000/=, medical allowance Kshs 1,740/= commuter allowance Kshs 8,000/=, health risk allowance Kshs 3,000/= and extraneous allowance Kshs 20,000/=

2. The grievant further averred that on 14th April,2003 he was promoted to Laboratory Technologist II position, job group K9, due to his good performance at work and on 30th October,2006 he was again promoted to a position of Medical Laboratory Technologist I job group K8 with further adjustment of salary. On 9th March 2009 he was further promoted to the position of Deputy in charge Histopathology Laboratory with further internal posting as acting Deputy Mausoleum Manager on 9th February 2010 and on 23rd November 2012 he was promoted to position of Deputy Farewell Home Manager.

3. The Grievant averred that despite all those promotions and appointments with clean working record of more than 15 years on 18th September,2014 he was suspended from work due to an allegations of repatriation of a body without express authority from his supervisor and that he received Kshs. 80,000/= and issued a fake receipt.

4. The Grievant further averred that he was invited by the Respondent to show cause why disciplinary action should not be preferred against him vide a letter dated 30th March,2015. This was 7 months after the suspension. The Works Committee wrote a letter dated 25th May,2016, pointing out to the undue delay and unprocedural manner in which the matter was being handled.

5. The grievant appealed the suspension which he felt was unfair and unprocedural. He complained that the incidents complained of were more than two years and drew attention of Ombudsman who also intervened vide a letter dated 13th July, 2017 but the Respondent ignored the said letters.

6. The grievant further averred that he was invited for disciplinary hearing on 29th September, 2015. The committee recommended the suspension of one Ms Jane Muga and that the suspension of the grievant be lifted without loss of salary.

7. The grievant averred after reinstatement he never received any of the withheld salary and allowances. No justification was given by the management and this according to the grievant was in contravention of Article 41 of the Constitution, clause 4. 2(d) and 4. 3(d) of Discipline Manual for the Public Service, 2016 which allowed half pay when on interdiction and full restoration of withheld salaries and allowances upon lifting of the interdiction.

8. The grievant further averred that he sought the intervention of the Claimant through a letter dated 10th March,2017 and the Claimant in response wrote a letter dated 14th March,2017 which the Respondent ignored compelling the Claimant to report a trade dispute vide a letter dated 19th September,2017 to the Minister who appointed a conciliator.

9. The Conciliator invited parties for joint conciliation vide a letter dated 1st Februasry,2018 and only the Claimant attended with the Respondent blatantly refusing to honour any of the joint conciliation meetings

10. The grievant further averred that on 4th January,2017 he was retired under the 50 year rule but to date the Respondent was yet to pay the salary withheld during suspension period which he states he was unfair and unprocedural.

11. The grievant therefore prayed for an order compelling the Respondent to pay his withheld salary for the period between 18th September,2014 to 4th August,2016 totalling to Kshs 2,075,808/= including basic salary, risk allowance, health extraneous allowances and leave and costs and interests of the suit.

12. In its statement of Response, the Respondent agreed to have employed the grievant but stated that the grievant was promoted pursuant to the Respondent’s policy of motivating long serving employees and not as a result of exemplary performance by the grievant. Further that he was suspended to pave way foe investigation on the unprocedural repatriation of a body without express authority of the Respondent, illegally collecting Kshs 80,000/= and thereafter issuing a fake receipt.

13. It was the Respondent’s averments that it acted in compliance with the law by inviting the grievant to show cause why disciplinary action should not be taken against him. A disciplinary hearing was done without delay and due procedure was followed as required under law and denied that the suspension went on for more than two years. Further that the recommendation of the committee was not binding on the Respondent.

14. It was further the Respondent’s assertion, that the Discipline Manual for the Public Service came into force in May 2016 long after the grievant’s suspension on 18th September 2014 and was therefore not applicable to the Claimant and that the grievant voluntarily retired from the Respondent’s employ. The respondent denied withholding the grievant salary during suspension.

15. The Respondent further averred that the claim herein was time barred under section 90 of the Employment Act for having not been instituted before end of 3 years from the date when the deductions were done.

16. At the hearing, the Claimant adopted the documents filed in court as his evidence in chief and he reiterated the disciplinary hearing made a verdict of his reinstatement and payment of all benefits to be paid but the Respondent refused to pay. He left the Respondents employment early because of the conditions of work and he saw danger after reinstatement hence he took early retirement even though he was not ready for it. It was his evidence that he felt discriminated on how his issue was handled and prayed the court to award his prayers.

17. The grievant in cross-examination stated that during the suspension he was not at work although he would report weekly at the Respondent and no work was given. It was his evidence that the rationale for risk allowance was due to handling of toxic and pathological substances and that he was entitled the same while on suspension and on re-examination the grievant confirmed that he was within time to claim after the shop floor was engaged hence entitled of his benefits after reinstatement.

18. The Respondent’s witness, RW1, adopted documents filed in court as evidence in chief and stated that the grievant was not paid his basic salary during suspension but he was paid his allowances because the terms of service allowed that then. The grievant was reinstated and worked for three months then asked for early retirement. He cleared and was paid his pension.

19. It was the Respondents testimony that the grievant was reinstated in 4/8/2016, claim filed in 4/10/2019 hence the claim was overtaken by events by the time of filing and in cross-examination RW1 testified that even though the disciplinary committee recommended that the grievant be reinstated without loss of salary the CEO could overturn or modify the committee’s recommendations.

20. It was the RW 1 testimony that he was not aware why the grievant opted for early retirement and the nature of the case took long even though not intentional.

21. The Claimant on the issue of whether the grievant was entitled to withheld salary during suspension, submitted that during suspension the grievant was reporting to the Human Resource Manager weekly hence he could not source for another employment and the staff disciplinary and advisory committee exonerated him from any wrong doing and recommended to the Respondent to lift the suspension without loss of salary withheld during the period of suspension. The recommendation was in line with Public service Rule 4. 5 sub rule 4(d) and that the Respondent made the decision when the manual was in place.

22. On the issue of violation of grievant’s constitutional rights by the Respondent it was the Claimant’s submission that the Respondent violated article 47 of the constitution on the right to fair administrative action, article 19(1) of the Bill of Rights and article 41(1) on the right to fair labour practices.

23. It was the Claimant’s submissions that the Respondent took 3 years to complete disciplinary process hence breaching the grievant’s constitutional rights and that he should be awarded costs of the suit.

24. The Respondent on the other hand filed its submissions and submitted on the issue of whether the Discipline Manual for Public service May 2016 was applicable to the Grievant’s claim and submitted that it was not applicable since the grievant was suspended on 18th September, 2014 and the manual was not intended to operate retrospectively.

25. On the issue of whether the grievant was entitled to withheld salary the Respondent submitted that the suspension letter provided that the grievant will not be entitled to salary but only the house, medical outpatient and transport allowance.

26. It was the Respondent’s submission that the grievant admitted during disciplinary hearing to having repatriated the body although the committee could not confirm the handwriting in the receipt for Kshs 80,000 was that of the grievant and as such recommended lifting of his suspension without loss of salary withheld. It was the respondent’s position that the committee’s recommendation was not binding on the Respondent as the Respondent’s CEO exercised her discretion in the matter and directed that the grievant be reinstated with loss of salary withheld. The respondent relied on the case of Mary Chemweno Kiptui v Kenya Pipeline Company Limited(2014) eKLR on validity of the suspension on reasonable apprehension that he would interfere with investigation.

27. On the period of suspension being long the Respondent submitted that its witness elaborated that the investigations took some time to conclude and it had no control over time frame taken by agencies to respond on the matter and prayed that disallows the claim.

28. It was the Respondent’s submission that this claim was caught up by limitation under section 90 of the Employment Act since the suspension was lifted in August 2016 but the claim was filed in 9th October,2019 which is outside 3 years which lapsed on 4th August 2019 and relied on the cases of Gathoni v Kenya Co-operative Creameries Ltd Civil Application No.122 of 1981, Nicodemus Marani v Timsales Limited, Industrial Cause No. 204 of 2013 and George Mwangi Karuga v Nairobi city Water and sewerage Company Limited & Another(2019)eKLR and prayed for the claim to be dismissed as time barred.

Determination 29. Limitation is a matter of law and one that goes to the jurisdiction of the Court. As has been observed in several cases including the famous Lilian S case, it is everything and whenever raised must be dealt with in limine. The Court cannot proceed to consider any aspect of the claim once it is convinced it does not have jurisdiction. The grievant was reinstated on 4th August, 2016 and that became the time when the cause of action over the withheld salary and allowances accrued. The claim herein was filed on 4th October, 2016 which was clearly outside the stipulated three year period under section 90 of the Employment Act. This section is couched on mandatory terms and once lapsed cannot be extended.

30. It matters not that there were efforts to conciliate the dispute, the cause action accrued the moment the grievant was reinstated without withheld salary and allowances. In this respect the suit will be struck out but with no order as to costs for being statute barred.

31. It is so ordered

DATED AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023DELIVERED VIRTUALLY THIS 27TH DAY OF OCTOBER, 2023ABUODHA JORUM NELSONJUDGE