[2023] KEELRC 2856 (KLR)

Mbithi v Simba Hospitality Services Ltd (Cause 403 of 2019) [2023] KEELRC 2856 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2856 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 403 of 2019

B Ongaya, J

November 10, 2023

Between

Kenneth Mutinda Mbithi

Claimant

and

Simba Hospitality Services Ltd

Respondent

Judgment

1. The claimant filed the Memorandum of claim on 21. 06. 2019 through Busaidy Mwaura Ng’arua & Company Advocates. The claimant prayed for judgment against the respondent for:a.A declaration that the termination of the claimant’s employment by the respondent was in violation of the claimants right to fair labour practices, fair administrative action and fair hearing as enshrined under Articles 41,47 and 50 of the Constitution.b.A declaration that the termination of the claimant’s employment by the respondent was in violation of sections 41 and 45 of the Employment Act, 2007. c.A declaration that the failure by the respondent to release the claimant’s full terminal benefits is unlawful and in contravention of Articles 41 of the Constitution.d.A declaration that the claimant is entitled to compensation from the respondent for violation of the claimant’s right to fair labour practices, fair administrative action and fair hearing as set out under articles 41,47 and 50 of the Constitution.e.An order directed at the respondent to pay the claimant his lawfully entitled terminal benefits, being the sum of Kshs.1,063,989. 00f.An order directed at the respondent to pay the claimant a sum equivalent to twelve (12) month’s pay as damages for the wrongful and unfair termination of the claimant’s employment, being the sum of Kshs.3,443,784. 00g.General damages for subjecting the claimant to mental torture and hardshiph.Costs of the suiti.Interest on prayers (e), (f), (g) and (h) above at court rates from the date of filing of the suit until payment in full is made.j.Any other relief the honourable court may deem fit and just to grant.

2. The response to memorandum of claim was filed on 08. 10. 2019 through Arwa & Change Advocates. The respondent prayed that the claimant’s suit be dismissed with cost and interest to the respondent as the court may determine.

3. The claimant’s case was that he was previously working at Ol Tukai Lodge, when the respondent head-hunted him and offered him employment.

4. By a contract of employment made on 17. 03. 2014 the respondent offered and the claimant accepted employment as an assistant front office manager of the respondent, from 01. 04. 2014 at a gross or consolidated salary of Kshs.166,500 per month.

5. The claimant states that through his diligence, competence and excellence, the claimant was confirmed to the position after a probationary period of three (3) months.

6. The claimant maintains that he served the respondent meticulously without fail and that he also served as acting front office manager for a period of eight (8) months, and at no point was his performance or conduct put to question, leading to his rising up the ranks to the position of front office manager.

7. In June 2018, the respondent issued the claimant with a show cause letter for a number of allegations including purported reports of cash handling matters at the front office in relation to an expense of USD550 and supposed insubordination. It was alleged that the claimant made an expense of USD550 without written approval.

8. The claimant states that by a letter dated 13. 06. 2018 he responded to the show cause letter and provided email documentation.

9. That on 27. 06. 2018 the respondent issued the claimant with a “disciplinary notification-final written warning”. It was alleged in the letter that the claimant did not follow due policy on cash handling matters at the front office, as well as lack of professional etiquette and insubordination.

10. The claimant states that by a letter dated 02. 07. 2018, he appealed the respondent’s decision to issue a final warning on the basis that he had clearly demonstrated and substantiated his response to every allegation set out in the show cause.

11. That by a further letter dated 08. 08. 2018 the claimant was issued a show cause letter for allegations of sexual harassment, to which he responded with a letter dated 12. 08. 2018.

12. The respondent subsequently suspended the claimant from 14. 08. 2018 pending disciplinary investigation. The claimant was informed to present himself for an oral hearing at the respondent’s human resource office on 21. 08. 2018, which was then postponed to 29. 08. 2018.

13. The claimant states that he sought from the respondent all necessary and relevant information and evidence pertaining to the allegations to allow him prepare his defence but the respondent refused, failed or neglected to provide him with all necessary documentation and information.

14. It is the claimant’s case that on 29. 08. 2018 he appeared before the respondent’s disciplinary committee whereupon he was ambushed with further allegations and accusations against his character. That he was asked to respond to claims of sexual harassment by different employees, which allegations or statements, he claims he had not been made aware of.

15. The claimant states that he denied all allegations and informed the committee that it was the first time he was aware of any such allegations against him. On 30. 08. 2018 he was issued with a termination letter, sighting summary dismissal for alleged sexual harassment.

16. The claimant contends that the respondent illegally and unlawfully made several deductions to his monthly pay from March 2017 to August 2018, and that the deductions were made without any notice nor was any explanation offered by the respondent.

17. On the part of the respondents it is argued that in 2014, subsequent to the employment of the claimant as one of the front office leaders, staff in the team expressed their dissatisfaction with his leadership citing the following areas of concern:a.High handedness.b.Intimidation of staff.c.Threats of firing staff.d.Poor communication.e.Loose talk.f.Sexual harassment.

18. It was stated that on 14. 05. 2018 the claimant was issued with a notice to show cause on account of the following issues where, the due process was not followed by him:a.Two expense forms for USD 550 were raised for Daimler party service recoveries without following the proper procedures or obtaining the necessary authorizations.b.Cash expense claim of USD 200 to a Ms. Gereme and original guest compensation were found at the front office whereas they should have been forwarded to the finance department together with the cash expense claim form and the USD cash float was not reimbursed as required.c.A front office supervisor lost USD 100 out of the front office float; procedures for recovery of the missing amount had not been followed.d.Insubordination- on several occasions, the claimant had challenged executive directives with respect to his work, including closure recruitments in the front office department.e.Failure to observe email etiquette in communication with supervisors.

19. The respondent maintains that the claimant was taken through a disciplinary hearing during which he admitted having violated process and procedures, insubordination and failure to observe email etiquette.Further, upon conclusion of the disciplinary hearing, he was issued with a final warning letter dated 27. 06. 2019.

20. The respondent states that it became aware of allegations of sexual harassment against the claimant through a written complaint dated 22. 07. 2018 made to the director of human resource by an employee of the respondent, one Ms. Maureen Kirira.

21. The respondent carried out investigations into the allegations and obtained statements from several employees who interacted regularly with the claimant, and the signed statements formed part of the investigation report.

22. Upon conclusion of the investigations, the respondent issued the claimant with a notice to show cause on 08. 08. 2018 that set out the details of the complaint and asked the claimant to respond in writing to the said allegations to the director of human resource.

23. It was stated that the claimant’s response dated 12. 08. 2018 set out in great detail the nature of the claimant’s relationship with the employee and his admission to having had several physical encounters with the employee.

24. Upon receipt of the claimant’s response, the respondent suspended the claimant vide a letter dated 14. 08. 2018 up to 20. 08. 2019, and informed the claimant that upon return, he would attend an oral hearing. However, by a letter dated 22. 08. 2019 the claimant was informed that his reporting date had been extended to 29. 08. 2018 and that he would appear for an oral hearing on the same date.

25. The respondent maintains that the disciplinary procedure undertaken on 29. 08. 2019 was in accordance with the Employment Act, 2007 and the respondent’s policies and procedures. The claimant’s nominated employee was Mr. Hudson Lovoni.

26. It is the respondent’s case that it provided the claimant with all necessary information and evidence pertaining to the case before and after the disciplinary hearing. That he was provided with a copy of the investigation report containing statements of the employee and other employees interviewed during the investigations carried out by the respondent into the issue.

27. The respondent states that the claimant had been accused of sexual harassment in 2014 by several employees of the respondent’s front office department and was issued with a warning letter dated 21. 12. 2014 following investigations.

28. The parties filed their respective submissions. The court has considered the parties’ respective cases and makes finding as follows.

29. To answer the 1st issue for determination the Court returns that parties were in a contract of employment and they are not in dispute on that issue per the pleadings.

30. To answer the 2nd issue for determination the Court returns that Court returns that there is no dispute that the contract of service was terminated by the letter of disciplinary notification on summary dismissal dated 830. 08. 2018. The dismissal was on account of use of inappropriate language with sexual connotations towards junior front office staff, making unwarranted physical contact with them and threatening staff using abusive language in event of minor or petty mistakes.

31. The 3rd issue is whether the summary dismissal was unfair, unlawful and unconstitutional. On the reason for termination the claimant confirmed in his oral testimony that several ladies at the workplace made complaints against him about loose talk to them and the issue was resolved. He further testified that in his written reply he stated that the words complained about were mere jokes. The Court finds that by that evidence the claimant confirmed that indeed he made the statements with sexual connotations as reported against him only that in his mind, he thought it was mere jokes. He confirmed in that regard he received a warning and he was asked to apologise to the affected team members. He also confirmed receiving several warnings during his service with the respondent including about the USD 550 as pleaded. He testified that at the disciplinary hearing, he was told there were 25 accusations of sexual harassment made against him.

32. The Court has examined the documents on record. By his reply dated 12. 08. 2018 to the show cause letter, the claimant confirms that he was involved in sexual conduct and relationship at work. He admits severally hugging a lady employee only that the lady had initiated the initial hug. He also admitted sending text messages with sexual connotations to the same lady but since he knew the lady’s boyfriend, he considered the messages to be on a light note. He also admitted visiting the house of the lady’s boyfriend without her knowledge and discussed her private life with the boyfriend. On a balance of probability, the Court finds that by his own written response to the show cause letter and previous cases of warnings, the claimant was culpable of sexually harassing the staff. The Court has noted the conduct about hugging, going to the employee’s boyfriend’s house, and discussing her personal private relationships and returns that the claimant sexually harassed the employee. It was not just at work but blended with spying on the employee’s private life with the boyfriend. The reason for termination is found to have been valid as per section 43 of the Employment Act and was fair as it related to the respondent’s operational requirements per section 43 and 45 of the Act. As for procedure, the Court returns that due procedure was followed per section 41 of the Act and the claimant confirmed as much in his testimony.

33. The Court returns that the termination was not unfair both in substance and procedure.

34. The claimant testified that he was paid all his terminal dues. The claim and prayer for annual leave is not particularised and is inconsistent with the testimony. As submitted the pension was to be pursued per applicable law and regulations by the claimant. The unlawful deductions were not proved at all and no submissions were made in that regard. The claim will fail as unjustified. The notice pay is not due in view of the summary dismissal and per section 44 of the Act.In conclusion judgment is hereby entered for the respondent against the claimant for the dismissal of the suit with costs.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS FRIDAY 10TH NOVEMBER, 2023. BYRAM ONGAYAPRINCIPAL JUDGE