[2023] KEELRC 2887 (KLR)

Mutabari v Unga Farm Care (EA) Limited (Cause 1570 of 2018) [2023] KEELRC 2887 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2887 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1570 of 2018

SC Rutto, J

November 10, 2023

Between

George Mutabari

Claimant

and

Unga Farm Care (EA) Limited

Respondent

Judgment

1. The Claimant avers that he was employed by the Respondent as a security officer with effect from 5th September 2016. He further states that he worked diligently until he was wrongfully, unfairly and unlawfully terminated from employment. According to the Claimant, despite his dedication to work, the Respondent maintained a hostile and unconducive work environment wherein he was treated with untold anger and discrimination culminating in his summary dismissal on 9th August 2018. His claim against the Respondent is for the sum of Kshs 6,791,400/= being compensation for loss of employment, untaken leave days and damages for discrimination, harassment and unfair labour practices. He further seeks to be paid the costs of the suit as well as interest.

2. Opposing the Claim, the Respondent avers through its Memorandum of Reply filed on 30th September 2018 that the Claimant was lawfully terminated and that it complied with the applicable statutory obligations. The Respondent further avers that the Claimant was provided with an adequate, friendly, safe and suitable working environment throughout his employment. Terming the Claimant’s termination from employment fair and just, the Respondent has asked the Court to reject his Claim in its entirety and dismiss the same with costs.

3. The Claimant filed a Response to the Memorandum of Reply, in which he denied the Respondent’s assertions and reiterated the averments in his Memorandum of Claim.

4. The matter proceeded for hearing on diverse dates during which both sides called oral evidence.

Claimant’s Case 5. The Claimant testified in support of his case and to start with, he adopted his Memorandum of Claim and witness statement to constitute his evidence in chief. He further produced the list and bundle of documents filed alongside the Claim as his exhibits before Court.

6. It was the claimant’s evidence that his job description included ensuring the safety of the Respondent's assets and personnel by preventing fraud and theft and investigating losses which job included the examination of personnel suspected of fraud and incidents of violence among the Respondent's outsourced personnel.

7. On various incidents, he would be called to the Respondent's Nairobi Feeds Nairobi branch to interview personnel involved in fist fights. On all occasions, he would take such rowdy personnel to the CCTV room and interview them in accordance with the rules and regulations of the Respondent.

8. He further averred that on several occasions, he requested the Respondent to repair the CCTV in the interviewing room in order for there to be a record of the activities that took place in the interviews as proof of the entire interview session. He also requested the Respondent to give him adequate protection and security while conducting the said interviews.

9. The Claimant averred that he brought all the above unsafe and unfriendly conditions at the workplace to the attention of the Respondent who only promised to address the same but to no avail as the same continued unabated.

10. He was surprised on 26th July 2018, to be invited by the Respondent via a telephone call to a disciplinary hearing where he had been accused of allegedly slapping two outsourced personnel, who were being examined for acts of violence within the Respondent's work premises on 30th April 2018 and 14th June 2018 respectively.

11. The hearing was conducted on that very day being 26th July 2018 in a manner the Claimant regards as discriminatory. He averred that no prior notice or advance charges were given to him to prepare for the same. That further, the hearing was conducted in the absence of the allegedly assaulted persons who would have testified on the same. That prior to that, he had never been informed of any complaints against him. Further, the incident at hand had taken place two months prior to the hearing and he had forgotten the details. He was not prepared at all.

12. He nonetheless attended the hearing but was not given a chance to defend himself as the purported hearing descended to an arena where the panelists made condescending comments and unwelcome remarks against him with a predetermined mind.

13. According to the Claimant, this clearly shows that the purported disciplinary hearing was merely cosmetic and a cover-up to sanitize the unfair labour practices he was subjected to.

14. He further averred that the Respondent failed its statutory and contractual duty to protect him from a hostile work environment and unfair labour practices at the workplace.

15. That as a consequence of the Respondent's actions, he lost his job without any valid reasons and in an utterly unprocedural and unfair manner. He contends that the Respondent breached all the requirements of the Law with respect to conducting a disciplinary hearing at the workplace. He was thus condemned unheard in a well-choreographed sitting.

16. The Claimant further stated that he has suffered loss and damages as a result and his professional career has been greatly damaged and diminished as he had devoted all his time and energy to serving the Respondent.

17. Concluding his testimony in chief, the Claimant asked the Court to allow his Claim as prayed.

Respondent’s Case 18. The Respondent called oral evidence through Ms. Doris Kivuti who testified as RW1. Ms. Kivuti identified herself as the Respondent’s Human Resource Business Partner. Similarly, she adopted her witness statement to constitute her evidence in chief. She further produced the list and bundle of documents filed on behalf of the Respondent as exhibits before Court.

19. It was RW1’s evidence that the then Human Resource Manager (HRM) of the Respondent, Rose Maruti received some complaints that two of the Respondent's outsourced employees namely Job Onuanga and Titus Maluki had been physically assaulted by the Claimant who had further subjected the said outsourced employees to inhumane treatment while using aggressive, vulgar and abusive language, all in the course of interviewing them.

20. That the then HRM instructed the Security, Safety, Health & Environment Manager (SSHE) who subsequently conducted an inquiry into the aforestated complaints made against the Claimant and furnished her with a report thereof.

21. Thereafter, the SSHE Manager initiated disciplinary proceedings against the Claimant by stating the offence/accusations against him whereupon he was required to show cause why disciplinary action should not be taken against him by the Respondent. The Claimant duly complied and responded to the allegations against him before duly signing the requisite Notice to Show Cause on 26th June 2018.

22. It was her further evidence that the Claimant was duly invited to attend the requisite disciplinary hearing to be held on 24th July 2018 at the Respondent's boardroom. The Claimant was further informed of his right to have a co-employee and or representative of his choice present during the said disciplinary hearing.

23. The said disciplinary hearing was subsequently held on 26th July 2018 with the then HRM, the SSHE Manager, the Claimant and Kerry Ochang attending the same. During the said disciplinary hearing, the SSHE Manager gave a narration of his findings and the resultant offences/accusations against the Claimant who gave his response thereto while freely and fully participating in the same. That the Claimant opted not to bring any co-employee and or representative.

24. That during the said disciplinary hearing, the Claimant requested that Nelius Waithera and Fred Okello be summoned as witnesses. Accordingly, the two were summoned and participated in the said disciplinary hearing.

25. At the end of the disciplinary hearing on 26th July 2018, the Claimant was duly informed of the findings thereof and he duly signed the requisite page thereof on the same date.

26. The signed minutes of the disciplinary hearing were subsequently circulated to all those who attended the same through their respective email addresses. There were no corrections and or other responses received from the Claimant and or the other attendees of the said disciplinary hearing.

27. Thereafter, the Respondent's management duly considered the representations of the Claimant in the said minutes in light of the SSHE Manager's findings in his report and subsequent offences/accusations, the Respondent's Code of Business Conduct and Ethics Policy and all other relevant policies and applicable employment law before reaching a decision to summarily dismiss the Claimant from employment.

28. The said decision was duly communicated to the Claimant in a letter dated 9th August 2018 stating therein, the reasons for the Respondent's said decision. Thereupon, the Claimant left employment without making any appeal against the Respondent's decision. The Claimant was accordingly paid his terminal dues.

Submissions 29. The Claimant argued that no video or documentary evidence was adduced in Court to support the assertions levelled against him by the Respondent. He further submitted that the Respondent did not avail the persons he assaulted both at the disciplinary hearing or before this Court. That further, no criminal charges were instituted successfully against him.

30. It was the Claimant’s further submission that he was invited to the disciplinary hearing by the Respondent vide a telephone call on the morning of the hearing and that he had no prior notice to prepare for it.

31. The Claimant maintained that the Respondent failed to inform him of his statutory right to be represented and/or accompanied by a person of his choice at the hearing. That he was also not accorded a fair opportunity to defend himself or cross-examine the witnesses.

32. On the other hand, the Respondent submitted that when considered as a whole, the evidence contained in the relevant investigation report confirms that the Claimant did in fact physically assault the abused employees and subjected them to inhumane treatment while using aggressive, vulgar and abusive language all in the course of interviewing them.

33. It was further submitted by the Respondent that at no time prior to the Claimant’s termination, did he raise the issue of there being no CCTV footage or video evidence.

34. It was the Respondent’s further submission that the decision to terminate the Claimant’s employment was on a balance of probabilities and thus the termination was justified in law.

35. According to the Respondent, the termination of the Claimant was both lawful and fair.

Analysis and Determination 36. Having carefully considered the pleadings on record, the evidentiary material before me and the rival submissions, the following issues stand out for determination: -i.Whether the termination of the Claimant’s employment was substantively justified;ii.Whether the Claimant’s termination was in line with the requirements of a fair process; andiii.Whether the Claimant is entitled to the reliefs sought.

Substantive justification? 37. Substantive justification entails proof of the reason or reasons for which an employee was terminated. Pursuant to Section 45(2) (a) and (b) of the Employment Act (Act), it is considered unfair termination where the employer fails to demonstrate that the reason for the termination is valid, fair and related to the employee’s conduct, capacity, compatibility or is based on its operational requirements. Further, it is instructive to note that Section 43 (1) of the Actspecifically places the burden to prove that the termination was fair, on the employer.

38. In the instant case, it is discernible from the Claimant’s letter of termination that he was terminated on grounds that he engaged in abusive behaviour at the workplace. The Claimant’s letter of summary dismissal reads in part:“Re: Summary Dismissal Due to Abusive Behaviour at WorkWe refer to the disciplinary hearing of 26th July 2018. As you are aware, we received complaints from employees at Nairobi Feeds Plant regarding your mishandling of employees during interrogation, when you were called as the Security Officer on duty. Investigations were carried out and written statements were given by both employees and witness security guards, providing us a basis for the disciplinary hearing. During the hearing, you initially denied the allegations; we called in two security guards witnesses who clearly confirmed that indeed during the employees' interrogation, you carried out in April 2018 and June 2018, you mishandled employees by forcing them to sit on the floor slapping them in a bid to make them answer your questions.Based on the foregoing, it is clear that your behaviour contravenes both our Code of Business Conduct & Ethics Policy and the Kenya Employment Act. You are therefore summarily dismissed from the service of Unga Farm Care (EA) Ltd, with immediate effect from 10th August 2018, as outlined in the Kenya Employment Act Chapter 44(4) (d) for use of abusive behaviour in the work place.”

39. From the record, it is apparent that the events leading up to the Claimant’s disciplinary process relate to two incidences in which employees who had been outsourced by the Respondent, were engaged in a physical fight within its premises. Seemingly, the accusations against the Claimant stemmed from the manner in which he undertook the interrogation of the said employees.

40. It also bears from the record that the Respondent undertook investigations into the allegations against the Claimant and in so doing, had several persons record statements which were exhibited before Court. The Claimant was among the persons who recorded a statement. In his written statement dated 25th June 2018, the Claimant admitted being called to respond to two incidents that occurred on 30th April 2018 and 14th June 2018 in which the outsourced employees had engaged in a physical fight.

41. With regards to the first incident of 30th April 2018, the Claimant stated that it took his intervention for the two employees involved to be given first aid as one of them had sustained injuries.

42. On the second incident, the Claimant stated that he received a distress call from Nelius Waithera, the CCTV operator at Nairobi Feeds Plant, that Job Onuanga and Moses Wanjala had engaged in a physical fight. Subsequently, he responded and took the two employees to the CCTV room for interrogation in the presence of Nelius Waithera, supervisor Kimuli and security guard Odero. He denied slapping the staff and stated that he used minimal force in restraining them for the important procedure of statement recording and cross-examination.

43. The Claimant further stated that the Respondent does not have a procedure on how to respond in cases of violent physical altercations or fights hence his response and actions were based on generally accepted standards-security industry. He did not intend to offend anyone.

44. Job Onuanga, who was one of the employees who had been involved in the second incident, stated that he was taken to the CCTV room for interrogation. He further stated that the Claimant forced him to sit on the floor and slapped him three times on the head for no reason.

45. Moses Wanjala, who was also involved in the second incident with Job, stated that during the interrogation, Job was silent and not opening up and this resulted in him being slapped. He did not get the name of the person who slapped Job.

46. Kimuli Patrick stated that he attended the interrogation session on 14th June 2018, chaired by the Claimant. During the interrogation session, the two employees (Moses and Job) were ordered to sit on the floor in the CCTV room. That since Job was seated next to the Claimant, he patted him on the head, shoulder and chin.

47. Paul Otieno Odero stated that he was called by Inspector Okello to the CCTV room. He further stated that the two “culprits” were slapped a little bit by the Claimant for them to speak up. That they were also told to sit down and remove their caps.

48. In his statement dated 18th June 2018, Fedrick Okello stated that the Claimant slapped Titus Mwendwa.

49. Nelius Waithera stated that with regards to the incident of 30th April 2018, the Claimant took the two employees (Titus and William) who were engaged in a fight to the CCTV room. That in the process of interrogating Titus, the Claimant felt irritated by his (Titus) rudeness and slapped him on the face twice. This provoked Titus but he controlled his temper and continued narrating what had happened.

50. With regards to the second incident, Nelius stated that during the interrogation of Job and Moses, the Claimant made them sit on the floor and in the course of the interrogation, he (Claimant) felt like one of them (Job) was lying to them and taking them in circles which angered him hence he slapped him on the face and head three times while swinging his head.

51. Mary Nduati stated that the Claimant took Job and Moses to the CCTV room for interrogation. When she followed them, he found the two staff seated on the floor. She was later informed by her colleague that one of them (Job) had been slapped on the head.

52. Following the investigations, the Claimant’s supervisor, Chris Otieno, prepared an investigation report in which he concluded that the Claimant used orthodox tactics in compelling the staff involved to give information on the incidents they were involved in. The said investigation report was exhibited by the Respondent.

53. The Respondent further exhibited a copy of the minutes of the disciplinary hearing, in which Fred Okello and Nelius Waithera were called following a request by the Claimant.

54. It bears to note that Fred and Nelius reiterated what they had previously stated in their written statements. In this regard, Fred told the disciplinary panel that the Claimant slapped Titus as he was not giving the reasons why he fought and that further, he made the “accused persons” sit on the floor.

55. On her part, Nelius maintained that the Claimant slapped Titus on the cheek three times as he felt he was not telling the truth. That with regards to the second incident, the Claimant made Job and Moses sit on the floor and then slapped Job who was seated next to him.

56. What manifests from the foregoing is that the written statements of all the persons interviewed tally on all fours and were consistent. All persons who were present during the interrogation sessions in question, confirmed that they had witnessed the Claimant slapping Titus and Job. That further, the Claimant had made Job and Moses sit on the floor during the interrogation session.

57. Further, as stated herein, when Nelius and Fred appeared before the disciplinary panel, they reiterated in the presence of the Claimant that they had witnessed him slapping the said employees and forcing them to sit on the floor.

58. All things considered, it is evident that the version presented by the Claimant could not hold and failed the credibility contest.

59. In support of his case, the Claimant has submitted that the Respondent failed to avail the CCTV footage of the two dates in question. Despite the Claimant’s assertions, it is notable that he admitted during his testimony in Court that the said room did not have any CCTV. Therefore, it follows that there was no CCTV footage in the first place with regard to the two incidents.

60. In any event, it is apparent that the Respondent relied on the witness statements recorded by the persons who witnessed the incidents in making its decision to take disciplinary action against the Claimant.

61. What’s more, in an employment context, it is not practical to expect an employer to carry out investigations with the same precision required in a criminal process. This is on account of the fact that the applicable standard of proof is on a balance of probability.

62. On this issue I will follow the determination by the Court of Appeal in the case ofKenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 others [2019] eKLR, where it was held that the standard of proof required is on a balance of probability and not beyond reasonable doubt, and all the employer is required to prove are the reasons that it “genuinely believed to exist,” causing it to terminate the employee’s services.

63. In the instant case, the Respondent only needed to prove on a balance of probabilities that the reasons for termination of the Claimant’s employment were reasons it genuinely believed to exist at the time.

64. The Respondent having received firsthand accounts of persons who allegedly witnessed the Claimant committing the acts alleged against him, availed it reasonable and sufficient reasons to terminate his employment.

65. It did not require a CCTV footage to prove beyond reasonable doubt that the Claimant had committed the said allegations of abuse against the concerned employees.

66. From the totality of the evidence presented in the instant case, I am led to conclude that the Respondent has proved on a balance of probabilities that it had sufficient and reasonable grounds to take disciplinary action against the Claimant based on his conduct during the interrogation sessions involving Titus Maluki, Job Onuanga and Moses Wanjala.

67. In total sum, I am of the considered view that the Respondent has proved that the reasons for the Claimant’s dismissal were valid, fair and related to his conduct thus his summary dismissal was substantively justified.

Fair process? 68. Over and above proving the reasons for an employee’s termination, an employer is required under Section 45(2) (c) of the Actto subject an employee to a fair process prior to termination. The specific requirements of a fair process are provided for under Section 41 of the Act. In this regard, the procedure entails notifying the employee of the allegations he or she is required to respond to and thereafter granting him or her the opportunity to be heard in response to the said allegations in the presence of a union representative or an employee of his or her own choice.

69. In this case, the Claimant contends that he was not aware of the complaints levelled against him and that he only came to know of the same when he was called in for the disciplinary hearing. This does not seem plausible since the Claimant was interviewed and he recorded his statement on 25th June 2018 in connection to the allegations.

70. Further, the Respondent exhibited a Notice to Show Cause dated 29th June 2018, in which the Claimant was required to respond to the allegations levelled against him. Indeed, the record reveals that the Claimant provided his response to the allegations.

71. It is worth noting that the Claimant stated during cross-examination that the signature in the response to the show cause does not belong to him. This assertion does not hold, seeing that it was the first time the Claimant was raising the issue. This is further considering the fact that when the Respondent filed its Reply and trial bundle on 30th September 2019, the Claimant responded through his Response dated 5th March 2020 and therein, he did not raise an issue regarding the authenticity of his signature. I therefore take the Claimant’s assertion to this effect as an afterthought.

72. It is not in dispute that the Claimant attended the disciplinary hearing on 26th July 2018. According to the Claimant, he was called on the same day of the disciplinary hearing by his supervisor and asked to attend a meeting. He further stated that he was not aware that he was going to face a disciplinary panel. He thought it was a normal work-related call. He contends that he was not given sufficient notice or advance charges to allow him prepare for the hearing.

73. Under Section 45(2) (c) of the Act, it is the employer who bears the burden of proving that an employee was terminated in accordance with a fair procedure. In this regard, it was upon the Respondent to prove that the disciplinary process against the Claimant was in consonance with Section 41 of the Act.

74. It is instructive to note that the Respondent did not exhibit any form of evidence confirming that the Claimant was made aware of the disciplinary hearing within a reasonable notice and that he was informed of his right to be accompanied by a colleague or a union representative to the said hearing.

75. Further, it is not clear from the record whether he was made aware of the charges he was going to face during the disciplinary hearing. This is noting that the Claimant had tendered his response to the Notice to Show Cause on 29th June 2018. There is no evidence that he had been informed that his response was not satisfactory hence the need for him to appear for a physical hearing to explain himself further. As it is, the disciplinary hearing came a month later. It was therefore not surprising for the Claimant to state that he had forgotten about the issue and was not aware that he was going in for a disciplinary hearing when he received a call from his supervisor to attend a meeting.

76. As a matter of fact, it is not clear whether going in for the disciplinary hearing, the Claimant was aware that the issues that had been raised previously during the investigations and in the show cause, were still alive and that his explanation was required at the said hearing.

77. This further leads me to question whether the Claimant had sufficient time to contemplate the allegations against him and the possible consequences. I highly doubt. This is further noting the time frame between the Claimant’s alleged conduct and the date of the hearing. It was close to two months.

78. In absence of evidence in the form of a Notification to the disciplinary hearing, I cannot help but observe that the Respondent failed to discount the Claimant’s assertions that he was invited to the disciplinary hearing through a phone call on the same date of the said hearing and did not have adequate time to prepare.

79. On this issue, I find useful guidance on the case of Nebert Mandala Ombajo vs Institute of Certified Public Accountants of Kenya (ICPAK), Nakuru Civil Appeal No. 62 of 2018, in which the Court of Appeal had this to say: -“The respondent has not justified the urgency in undertaking the disciplinary proceedings on the 4th March, 2014 when the letters were only written on 3rd March, 2014. [27] Disciplinary proceedings are a grave matter for an employee as the consequences may be catastrophic to the employee’s life. In the case of the appellant, the complaints against him were serious, and there is no doubt that he needed sufficient time to prepare psychologically, and if need be, get the best advice that he could.”

80. Applying the determination in the above case to the instant case, I arrive at the inevitable conclusion that when considered as a whole, the process applied by the Respondent in terminating the Claimant’s employment was flawed.

81. The net effect of my finding is that in as much as the Respondent was substantively justified in terminating the Claimant’s employment, the disciplinary process against him was not in accord with the spirit of Section 41 of the Act hence in the end, his termination was procedurally unfair hence unlawful.

Reliefs? 82. As the Court has found that the Claimant’s termination although substantively justified was procedurally unfair, he is awarded compensatory damages equivalent to three (3) months of his gross salary. This award takes into account the length of the employment relationship as well as the Claimant’s own contribution to the termination of his employment.

83. The claim for untaken leave is declined as the Claimant was informed through the letter of termination that he would be compensated for any untaken leave days. To this end, he did not craft his prayer specifically and identify the period for which he was not compensated for leave days not taken.

84. The claim for damages for discrimination, harassment and unfair labour practices is similarly declined for want of proof and better particulars.

Orders 85. In the final analysis, I enter Judgment in favour of the Claimant against the Respondent in the following manner: -a.The Claimant is awarded compensatory damages in the sum of Kshs 390,000. 00 which sum is equivalent to three (3) months of his gross salary.b.Interest on the amount in (a) at court rates from the date of Judgment until payment in full.c.The Claimant shall have the costs of the suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER 2023. …………………STELLA RUTTOJUDGEAppearance:For the Claimant Ms. MerichiFor the Respondent Mr. KibanyaCourt Assistant Abdimalik HusseinORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE