[2015] KEELRC 531 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI

CAUSE NO. 70 OF 2014

KUDHEIHA WORKERS.....................................................................................................................CLAIMANT

VERSUS

BOG KAIRURI MIXED DAY SECONDARY SCHOOL................................................................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 25th September, 2015)

JUDGMENT

The claimant union filed the memorandum of claim on 11. 06. 2014 on behalf of its member Rosemary Njura Nyaga, the grievant. The claimant prayed for judgment against the respondent for:

Two months pay in lieu of notice under clause 6 (ii) of the CBA making Kshs. 24, 832. 00.

Underpayment of salaries from October 2004 to May 2012 as set out in the memorandum of claim.

Unpaid house allowance from October 2004 to 2010 Kshs. 157,500. 00.

Underpaid house allowance for 2011 and 2012 Kshs.6, 800. 00.

12 months compensation for unfair loss of employment Kshs.148, 992. 00.

5 days worked in June 2012 Kshs. 2069. 25.

Total claim Kshs.702, 581. 25.

The respondent filed the memorandum of response on 21. 07. 2014 through F.O.Makori, Litigation Counsel, for Attorney General. The respondent also filed on 21. 07. 2014 the notice of preliminary objection and prayed that the memorandum of claim be struck-out with costs. The amended notice of preliminary objection was filed on 19. 11. 2014 stating that the suit was time barred under section 90 of the Employment Act, 2007.

The grievant was employed by the respondent as a secretary as per the letter of appointment dated 22. 10. 2004. By the letter of appointment dated 05. 07. 2008 the respondent offered the grievant the job to serve as the school accounts clerk. The total pay was Kshs. 12, 380. 00 per month.

By the letter of 4. 04. 2012 the respondent leveled against the grievant misconducts including neglect of duties for failure to update school accounts as the school accounts clerk; insubordination for refusal to undertake duties of assisting in receipting of form four K.C.S.E registration levies as was assigned, refusal to assist in weighing foods at the kitchen, causing delay of payment of staff by the SACCO on 8. 03. 2012, giving students and parents advise contradicting the principal’s instructions, and inciting support staff not to perform their duties; and unethical behavior involving use of derogatory statements and language in reference to the school Principal, alleging publicly that a co-worker was HIV positive and discussing school matters in public. The grievant was required to explain her case in writing within 14 days in view of intended serious disciplinary action. The grievant replied in writing on 10. 04. 2012 and was heard by the board on 25. 04. 2012 and given a reprimand by letter dated 26. 04. 2012. The letter required the grievant to refrain from her misconducts and to write books of accounts professionally.

On 30. 05. 2012 the respondent met and unanimously agreed that the grievant be relieved off her duties because of insubordination and inefficiency as the school’s accounts clerk. The termination letter was dated 5. 06. 2012 and the grievant’s employment was terminated effective 6. 05. 2012.

The 1st issue is whether the grievant was a member of the claimant union. The grievant testified that she was a member of the union. The claimant relied on the membership card and receipts showing that she privately paid union dues. However these were not filed in court. Nevertheless, the court finds that the grievant has established on a balance of probability that she was a member of the claimant union and the union was entitled to sue as it had the relevant standing because the records show that the claimant and the Ministry of Education had concluded a collective agreement.

The 2nd issue is whether the claimant’s suit was time barred. The grievant was terminated on 5. 06. 2012 and suit was filed on 11. 06. 2014. The record shows that parties were in conciliation proceedings ending in a purported agreement date 30. 10. 2013 being exhibit 6 on the claim. However, the respondent’s chairman failed to sign that agreement. The conciliator issued the certificate of disagreement on 30. 10. 2013. On that basis and in view of the conciliation process the court finds that the suit was not time barred. While making that finding the court has considered that there is no reason to disregard the collective agreement between the claimant and the Ministry of Education filed by the claimant as exhibit 18 and which was binding upon the parties.

The 3rd issue is whether the claimant is entitled to the remedies as prayed for. The court makes findings as follows:

The respondent has not showed that after the reprimand, the grievant was given a further notice and hearing before the subsequent termination. The record shows that after the reprimand, the claimant was punished the second time by the dismissal and on account of the same grounds she had already been punished by way of the reprimand. The court finds that the same amounted to double punishment. The termination was unfair for want of notice and hearing under section 41 of the Employment Act, 2007. The grievant says the reason was invalid because the respondent knew she was a qualified secretary and not an accountant. However, for a considerably long time the grievant had accepted the appointment as an accounts clerk and the assertion of lack of qualifications was, in the opinion of the court, an afterthought. The court finds that the respondent was equally to blame for appointing the grievant to the position of an accounts clerk while the grievant was not qualified as such. Upon the standards of section 43 of the Act, the court finds that the respondents lacked a genuine reason to terminate the claimant as allegations of failure to perform as an accounts clerk were invalid and the same had been a subject of an earlier punishment. Thus the termination was unfair for want of valid reasons and the claimant is awarded 2 months salaries making Kshs. 24,832. 00 in compensation in view of the grievant’s contribution to her own dismissal by accepting the appointment to the position of an accounts clerk while she knew she lacked capacity to perform as such.

Prayer for payment of house allowance from 2004 to 2010 will fail as the injury was of a continuing nature and the claim was not made within 12 months as envisaged in section 90 of the Employment Act, 2007.

The claimant is entitled to pay for 5 days worked in June 2012 making Kshs. 2069. 25 as prayed for.

The claimant is entitled to Kshs. 24,832. 00 being pay in lieu of notice as prayed for.

The claimant has not established that the civil service circulars on pay applied to the grievant’s service as the same are not referred to in the collective agreement or the letter of appointment. The prayers for underpayment will therefore fail.

The claimant failed to show the evidence and basis for the prayer for underpayment of house allowance for 2011 and 2012 and the prayer shall fail.

In conclusion, judgment is entered for the claimant against the respondent for:

The declaration that the termination of the claimant’s employment by the respondent was unfair.

The respondent to pay the grievant Kshs.51, 733. 25 by 1. 12. 2015 failing interest to be payable thereon from the date of this judgment till full pay.

The respondent to pay the claimant’s costs of the suit.

Signed, datedanddeliveredin court atNyerithisFriday, 25th September, 2015.

BYRAM ONGAYA

JUDGE