[2017] KEELRC 137 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO. 746 OF 2015

MSAI MWANGOLO NYAE.........................................CLAIMANT

VERSUS

CHENDA INVESTMENTS LIMITED....................RESPONDENT

J U D G M E N T

INTRODUCTION

1. This is a claim for unfair termination of employment and refusal to pay terminal dues. The twin issues for determination are whether the termination of claimant’s contract of service was unfair and whether the claimant is entitled to the reliefs sought. The respondent has denied liability for unfair termination and averred that it is the claimant who voluntarily deserted her employment.

CLAIMANT’S CASE

2. The claimant testified that she was employed by the respondent as a Cleaner in 2014 and her salary was ksh.7500 per month. She was never given any written contract but she worked continuously and without problems with her employer until 27/8/2015 when she was questioned about her case number CMCC 1586 of 2015 which she had filed against her employer in relation to work injury and suspended for one week. Thereafter her effort to resume work was thwarted by the respondent who demanded that she had to withdraw the said suit.

3. On 8/9/2015, she received a letter dated 4/9/2015 stating that she had absconded duty which according to her was not true. She went to the officer on 9/9/2015 to enquire about the said letter but to her dismay she as served with a termination letter without any prior notice or prior hearing. According to her the absconding letter was served on her while serving her suspension and as such she denied the alleged absconding. She maintained that both her suspension and termination were visited on her because she refused to withdraw her suit against the employer. She therefore prayed for compensation for unfair termination, salary in lieu of notice, underpayments on salary plus costs.

4. On cross examination by the defence counsel, the claimant denied ever signing a written contract with the respondent. She admitted that her starting salary was ksh.7500 but denied that the contract commenced on 1/10/2014. She further admitted that she was called to a meeting on 19/8/2015 to discuss her misconduct of taking tea at 10. 30am before finishing her duties. She denied ever being served with warning letters for rudeness and not cooperating with other employees. She admitted being given suspension letter on 20/8/2015 for one week. She further admitted as at 4/9/2015 when absconding letter was written, she had not reported back from the suspension. She thereafter received termination letter dated 8/9/2015 which took effect on 9/9/2015.

5. She maintained that she filed a case for compensation for injuries sustained when she slipped and fell down while collecting Jik (bleach detergent). She however admitted on further cross examination that she was injured while fighting with Daniel. She explained that the employer pressed her to withdraw her suit so that she could compensate her but when she refused, she was suspended and later dismissed.

6. On re-examination, she clarified that she started working for the respondent on 1/5/2014 as a Cleaner. She further clarified that she was invited to disciplinary hearing by phone after being found taking tea but she was not told to come with a fellow employee of her choice. That at the hearing the supervisors asked her whether she was taking tea at 10. 30am and she admitted. She however maintained that she had permission to do so. She also denied ever fighting with her colleague, Daniel at the work place.

DEFENCE CASE

7. Ms Rehema Billton (RW1) is the respondent’s senior supervisor at the Coast General Hospital where the claimant was stationed. She contended that the claimant was employed on 14/5/2014 and confirmed on1/10/2014. She however accused her of misconduct and failure to cooperate with other employees in doing the group assignments at the hospital. She explained that her efforts to counsel and serve warning letter on the claimant were in vain and that in January 2015, the claimant fought with her fellow employee Mr. Daniel Menza as a result of which she sustained a broken leg as aresult of which went for 4 paid sick off.

8. On 19/8/2015, she invited the clamant to disciplinary hearing on charges of taking tea during working hours and for insulting her supervisor. After the hearing she suspended the claimant for one week starting from 20/8/2015. That when the claimant reported back on 27/8/2015, she referred her to the respondent’s director but thereafter she never came back to work at the hospital.

9. On cross examination by the claimant’s counsel, Rw1 admitted that the claimant never signed the written contract of employment. She further admitted that the claimant never signed to acknowledge receipt of the warning letters. She also admitted that she was not present when the claimant fought with Daniel in January 2015. She maintained that the claimant was taking tea at the wrong time. She clarified that she did not know what happened at the meeting between the claimant and the directors after she referred her to him.

10. On re-examination, she stated that the claimant signed the contract of employment dated 1/10/2014.

11. Mr. Nathaniel Hamjui Justin (RW2) is the respondent’s supervisor at the Coast General Hospital. He confirmed that the claimant was working with 47 other cleaners in the toilets, offices and corridors. He contended that the claimant was not harmoniously working with her colleagues and had not respect and was rude to him as the supervisor. That on 22/1/2015 she went to collect detergent from his office and he sent her to turn off a running tap. She in turn send Daniel Menza to do so and when he refused, a scuffle ensued and they fought. She suffered injury and when she went to the hospital she lied that she fell down and got injured. Thereafter she went on a 3 months paid sick leave but upon return to work she continued with her rudeness and disrespect to me. As a result she was summoned to a disciplinary hearing and suspension for one week from 20/8/2015. He confirmed that there was a tea break from 10. 00 am to 10. 30 a.m.

12. On cross examination by the claimant’s counsel, RW2 admitted that he had made no written reports about the claimant’s rudeness and arrogance. He also never made any report on the fight between the claimant and Daniel while at work. He admitted that he did not know whether the claimant was dismissed and for what reasons.

13. Mr. Richard Jefwa (RW3) is the respondent’s director. He confirmed that the claimant was his employee attached at the Coast General Hospital where he had a tender for cleaning services. He only spoke to her once on 27/8/2015 when she was referred to him by the supervisor at the hospital after she misconducted herself. That he asked her why she was rude to her seniors and not cooperating with her colleagues. He then gave 3 days to decide whether she would continue with the work by cooperating with other workers or not. That after the 3 days she never returned and on 4/9/2015 he a letter warning her of absconding work. On 9/9/2015 he terminated her employment after she failed to heed to the warning letters.

14. He concluded by stating that he only decided to dismiss her after she absconded duty even after the warning letter dated 4/9/2015. He denied that he dismissed the claimant for suing the company for the injuries suffered after fighting with Daniel. He allowed to continue working while pursuing compensation from his insurer, Kenya orient. He admitted that his advice to the claimant to go home for 3 days to reconsider her conduct was verbal. He further admitted that his warning letter dated 4/9/2015 indicated that she never availed the information about her injury case. He denied warning her to withdraw the suit or be dismissed. He maintained that he asked the claimant for the information documents after he was served with a demand letter but she failed to avail the same and absconded work. He further maintained that he requested for the document in order to assit her pursue her claim under the Work Injury Benefit Act because he had an insurance cover.

ANALYSIS AND DETERMINATION

15. There is no dispute that the claimant was employed by the respondent as a cleaner from May 2014 to 9/9/2015 when she was dismissed by the respondent. The issues for determination are:

(a) Whether she was unfairly terminated.

(b) Whether she is entitled to the reliefs sought.

Unfair termination

16. Under Section 47(5) of the Employment Act, the burden of proving unfair termination of employment is upon the employee who alleges that she was unfairly dismissed. In this case, the claimant alleges that she was suspended on 27/8/2015 for one week on ground that he had filed a suit against her employer. That on 8/9/2015, while still on suspension she received a letter dated 4/9/2015 alleging that she had absconded duty and when she went to the office on 9/9/2015 to verify the allegation, she was served with a termination letter. According to her she was unfairly terminated by the respondent for no other reason other than the fact that she filed suit Number CMCC 1586 of 2015 against her to recover damages for injuries suffered while on duty. That before the termination she had turned down demands by the respondent to withdraw the said suit

17. The respondent has however denied the alleged unfair termination and averred that the claimant was suspended by the RW1 on 20/8/2015 for misconduct and when she reported back on 27/8/2015, she was referred to the RW3. That Rw3 discussed with the claimant about her misconduct and also sought some information from her concerning the suit she had filed against the employer and gave her 3 days to reconsider her misconduct and also avail the requested information regarding her injury claim. That the claimant never returned after the three days given and the respondent and the served her, the letter dated 4/9/2015 warning that she was absconding duty. That when the claimant failed to show up, the respondent served a termination letter on 9/9/2015.

18. After careful consideration of the material presented to the court, it is clear that the relationship between the parties herein had gone sour from January 2015. That by 20/8/2015, the claimant had to be suspended for misconduct namely rudeness and failure to cooperate with her colleagues at work where they were working as group to clean hospital wards and other facilities. Such bad relationship with colleagues had led to a fight with Daniel Menza at the work place which resulted to injury to her leg. The respondent never preferred any disciplinary action against the claimant until 19/8/2015 when she was found taking tea at 10. 30am. She was then summoned to a disciplinary hearing, suspended for one week and thereafter referred to the director on 27/8/2015. That the director questioned her about her misconduct and the case she had filed against the company and send her home for 3 days to reconsider her conduct and avail some information about the suit against the company. The claimant never reported back after the 3 days even after being served with the letter dated 4/9/2015 forcing the respondent to serve her with the termination letter dated 9/9/2015.

19. Flowing from the foregoing analysis, it is clear that the reason for the termination of the claimant’s employment by the respondent was absconding of duty from 27/8/2015. The said reason had been cited in the later dated 4/9/2015 by which the respondent complained that she had absconded duty after being asked to avail certain information concerning her suit against the company.

20. Under Section 45(2) of the Act, termination of employment by the employer is unfair if he fails to prove that it was not done on valid and fair reason and that it was done after following a fair procedure. In this case, the claimant was given 3 days by the RW3 to reflect on her misconduct and avail some information concerning her suit against the respondent. That the 3 days given on 27/8/2015 lapsed on 30/8/2015 but she never reported back to the office. The respondent wrote to her on 4/9/2015 about the absconding of duty but again she never reported back or responded to the said letter. In my view the continued absentiseem and failure to respond to the letter dated 4/9/2015 was a valid and fair reason for terminating the claimant’s services. Under Section 44(4) (a) and (e) of the Act entitles the employer to summarily dismiss his employee for absenting himself from work without leave or lawful cause; and for disobeying his lawful and proper command.

21. As regards the procedure followed, it is my opinion that it was not fair within the meaning of Section 41 of the Act. Under the said Section before the employer terminated the services of his employee on ground of misconduct, physical incapacity or poor performance, the employer must first explain the reason for the intended termination to the employee in a language he understands and in the presence of fellow employee or shop floor union representative of his choice, and thereafter invite the employee and his chosen companion to air their defence for consideration before the termination is decided. The Rw3 never invited the claimant to any hearing as contemplated by Section 41 of the Act and as such the termination on 9/9/2015 was unfair. The matters were not mitigated by the letter dated 4/9/2015 because the letter neither warned the claimant of any disciplinary action for the continued absence nor did it invite her for any disciplinary hearing in the presence of a fellow employee of her choice.

Reliefs

22. In view of the finding herein above that the termination of the claimant’s contract of service was unfair, under Section 49 of the Act I award to her ksh.10000 being salary in lieu of notice plus ksh.s20000 being 2 months’ salary as compensation for unfair termination. In awarding the said compensation, I have considered the fact that the claimant served the respondent for just one year and also the fact that she contributed to the termination through misconduct. I have also based the award on the salary pleaded despite the fact that the minimum basic pay for a cleaner as per the 2015 wage was ksh.10954.

23. I further award the claim for leave as prayed being ksh5076 based on the salary of ksh.10000x21/26. The claim for salary under payment is also granted. From May 2014 to April 2015, the minimum basic salary gazzeted for a cleaner was ksh.9780. 95. The claimant was earning ksh.7500 which translates to an underpayment of ksh.9780. 95-kshs.7500x12 months equaling to ksh.27371. 40. From May 2015 to August 2015 the underpayment was (skh.10954. 70-ksh.7500)x4 months equaling to ksh.13818,80. The total underpayment awarded is therefore ksh.41,190. 20.

24. The claim for house allowance is also granted at the conventional rate of ksh.15% of the basic ay per month hence from May 2014 to April 2015 I award ksh.9780. 95 x15% x 12 equaling to ksh.17,605. 71. From May 2015 to August 2015 I award ksh.10954. 70 x 15% x 4 equaling to ksh.6572. 82. The total house allowance outstanding is ksh.24,178. 53 but because she pleaded ksh.22500, that is all I will award to her. The claim for certificate of service I also granted as prayed.

DISPOSITION

25. For the reasons that the termination was unfair, I enter judgment for the claimant in the sum of kshs.98766. 20 plus costs and interest.

Dated, signed and delivered this 3rd November 2017

O. Makau

Judge