[2014] KEELRC 1123 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO 1270 OF 2010

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

VS

MUTHAIGA COUNTRY CLUB...........................RESPONDENT

AWARD

Introduction

1. The Claimant's claim is brought on behalf of the following 19 Grievants:

Rose Omole

Dickson Ayuya Bukasa

Joseph Ndichu Wangui

Nashon Musee Thuo

Robert Masai Nzue

Bernard Mailu

Boniface Ndungu

Newton Ondieki

Stephen Muriithi Ndwiga

Christopher Juma Kona

Stanley Muinde Munguti

Joseck Josiah Opunga

Peter Ngigi Kamau

Jared Makori

Joseph Muinde Makau

Evanson Mwangi Mbora

Alfred Matisha

Anthony Koyaa

Josephat Mose Nyancheka

2. The Respondent filed a Statement of Response on 1st November 2010 and the matter was heard between 19th June 2013 and 6th March 2014. Joseck Josiah Opunga the 12th Grievant, testified on behalf of the 1st-17th Grievants while Josephat Mose Nyancheka, the 19th Grievant testified on his own behalf. The Respondent called its former Chief Executive Officer, Stewart Donald Granville Vetch and Human Resource Officer, Joshua Wambua.

The Claimant's Case

3. By a Memorandum of Claim filed in Court on 15th October 2010, the Claimant states that the 1st-17th Grievants who were all employees of the Respondent, were dismissed for allegedly taking part in a strike on 5th December 2009. According to the Claimant, there was no such strike since on that day, the Respondent was hosting an important members' event, known as Christmas Draw, which went on without any interruption.

4. The Claimant therefore contends that the Respondent had made up its mind to terminate the Grievants' employment and the issue of the strike was therefore a cover up.

5. With regard, to the 18th and 19th Grievants who were dismissed for other offences not related to the alleged strike, the Claimant states that their cases were not handled fairly.

6. The Claimant claims the following:

That the Grievants be reinstated or

That their dismissal be reduced to normal termination with at least 12 months’ salary compensation

Costs

The Respondent's Case

7. In its Statement of Response, the Respondent states that the 1st -17th Grievants participated in an illegal strike on 5th December 2009 which disrupted the Respondent's operations as it was holding a club function known as the Christmas Draw.

8. According to the Respondent, the Grievants were severally requested by their superiors to resume work but they declined and became rowdy and abusive towards their superiors. The Respondent states that the Grievants' conduct amounted to absenting themselves from the appointed place of work without leave and failing to obey a lawful command constituting gross misconduct warranting summary dismissal under Section 44(4) of the Employment Act, 2007.

9. The Respondent suspended the Grievants with pay on 9th December 2009 pending investigations into the strike. The Grievants were thereafter invited for a hearing on 24th December 2009 and were subsequently dismissed on 28th December 2009.

10. With regard to the 18th Grievant, Anthony Koyaa, the Respondent states that on 7th November 2009 he ordered and placed drinks on an unoccupied table thereby exposing the Respondent to loss. The Respondent avers that this conduct amounted to improper and negligent performance of work warranting summary dismissal under Section 44(4) of the Employment Act, 2007. Koyaa was suspended with pay on 9th November 2009 pending investigations. He was then invited for a hearing on 25th November 2009 and was dismissed on 1st December 2009.

11. The 19th Grievant, Josephat Mose Nyancheka was said to have recklessly, carelessly and negligently driven a motor vehicle within the Respondent's premises thereby damaging a gate and endangering the lives of other persons at the premises. Nyancheka was also accused of reporting to work while intoxicated. He was suspended on 9th November 2009 pending investigations and was heard on 25th November 2009. He was thereafter dismissed on 1st December 2009.

Findings and Determination

12. The issues for determination in this case are as follows:

Whether the Respondent had a valid reason to terminate the Grievants’ employment;

Whether in effecting the termination, the Respondent followed due procedure;

Whether the Grievants are entitled to the reliefs sought.

Reason for Termination

13. Section 43(1) of the Employment Act, 2007 provides that:

(1) In anyclaim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.

14. The 1st -17th Grievants were accused of participating in an illegal strike on 5th December 2009, an allegation consistently denied by the Claimant. The 12th Grievant, Joseck Josiah Opunga testified that in fact there was no strike on 5th December 2009.

15. Stewart Donald Granville Vetch on the other hand told the Court that on the said date at 1. 30 pm, he was called from his house where he had been on bed rest to talk to the Respondent's unionisable employees who had staged a sit-in at the Staff Canteen. Vetch managed to convince majority of the employees to go back to work but the 1st -17th Grievants refused to go back to work. The 17 Grievants were therefore suspended on 9th December 2009 and were thereafter subjected to a disciplinary hearing on 24th December 2009 and finally dismissed on 28th December 2009.

16. Vetch told the Court that the 17 Grievants were identified by their managers as having refused to go back to work alongside their colleagues. These managers were however not called to testify and according to the evidence adduced before the Court, there were approximately 220 employees.

17. Moreover, in its Memorandum of Claim, the Claimant gives a detailed account of the activities of each of the 17 Grievants on the day of the alleged strike and the Respondent made no effort to respond to the averrments made by the Claimant in this regard. The Court was therefore unable to understand the criteria used by the Respondent in determining the employees who had refused to go back to work following the intervention by Vetch. The Court therefore finds that the Respondent has failed to establish a valid reason for dismissal of the 1st -17th Grievants.

18. The 19th Grievant, Josephat Mose Nyanchoka admitted having driven a motor vehicle within the Respondent's premises thereby causing damage to one of the Respondent's gates. The Court therefore finds that the Respondent had a valid reason to terminate Nyanchoka's employment.

Termination Procedure

19. The charges leveled against the Grievants constitute what is commonly known as misconduct. Section 41 of the Employment Act, establishes the procedure for handling cases of misconduct as follows:

(a) That the employer has explained to the employee in a language the employee understands the reasons why termination is being considered;

b) That the employer has allowed a representative of the employee being either a fellow employee or a shop floor representative to be present during the explanation;

c) That the employer has heard and considered any explanations by the employee or their representative;

20. In addition, Section 12 of the Act requires an employer who has more than 50 employees in its employment, to document internal disciplinary rules for use in handling disciplinary cases.

21. The Respondent's second witness, Joshua Wambua who was part of the Disciplinary Committee appointed to hear the cases against the 1st -17th Grievants testified that a union representative by the name Johnstone Maluki took part in the disciplinary proceedings. This evidence was confirmed by the testimony of Joseck Josiah Opunga. The Court was therefore satisfied that the 1st -17th Grievants were given an opportunity to be heard.

22. The 19th Grievant, Josephat Mose Nyanchoka told the Court that before his dismissal he was called to a disciplinary meeting where it was agreed that the damage he had caused be assessed for him to make good. The Court therefore finds that he too was given a fair hearing.

Reliefs

23. In view of the Respondent's failure to prove a valid reason for dismissal of the 1st -17th Grievants, I make the following award:

Each of the Grievants (1st -17th ) shall be paid notice in accordance with the Collective Bargaining Agreement obtaining at the date of dismissal;

The 1st Grievant, Rose Omole shall be paid 6 months' pay in compensation for unfair termination of employment

The 2nd Grievant, Dickson Ayuya Bukasa shall be paid 9 months' pay in compensation for unfair termination of employment

The 3rd Grievant, Joseph Ndichu Wangui shall be paid 9 months' pay in compensation for unfair termination of employment

The 4th Grievant, Nashon Musee Thuo shall be paid 8 months' pay in compensation for unfair termination of employment

The 5th Grievant, Robert Masai Nzue shall be paid 4 months' pay in compensation for unfair termination of employment

The 6th Grievant, Benard Mailu shall be paid 3 month's pay in compensation for unfair termination of employment

The 7th Grievant, Boniface Ndungu shall be paid 5 months' pay in compensation for unfair termination of employment

The 8th Grievant, Newton Ondieki shall be paid 1 month's pay in compensation for unfair termination of employment

The 9th Grievant, Stephen Muriithi Ndwiga shall be paid 11 months' pay in compensation for unfair termination of employment

The 10th Grievant, Christopher Juma Kona shall be paid 1 month's pay in compensation for unfair termination of employment

The 11th Grievant, Stanley Muinde Munguti shall be paid 2 months' pay in compensation for unfair termination of employment

The 12th Grievant, Joseck Josiah Opunga shall be paid 8 months' pay in compensation for unfair termination of employment

The 13th Grievant, Peter Ngigi Kamau shall be paid 12 months' pay in compensation for unfair termination of employment

The 14th Grievant, Jared Makori shall be paid 1 month's pay in compensation for unfair termination of employment

The 15th Grievant, Joseph Muinde Makau shall be paid 5 months' pay in compensation for unfair termination of employment

The 16th Grievant, Evanson Mwangi Mbora shall be paid 4 months' pay in compensation for unfair termination of employment

The 17th Grievant, Alfred Matisha shall be paid 5 months' pay in compensation for unfair termination of employment

The amounts payable to each Grievant shall be agreed upon by Counsels for the parties within the next 21 days from the date of this award.

24. The 18th Grievant, Anthony Koyaa was accused of placing drinks on an unoccupied table thus exposing the Respondent to loss. While the Claimant has given an elaborate explanation on the circumstances surrounding Koyaa's case, no evidence was led to prove these averrments and the Court therefore found no basis for the claim on account of this Grievant which is hereby dismissed.

25. In view of the finding that the Respondent had a valid reason to terminate the employment of the 19th Grievant, Joseph Mose Nyanchoka and that he was accorded a fair hearing, his claim is also dismissed.

26. Each party will bear their own costs.

Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 9TH DAY OF JULY 2014

LINNET NDOLO

JUDGE

Appearance:

Mr. Nyabena for the Claimant

Mr.Njuguna for the Respondent