[2023] KEELRC 2853 (KLR)

Muthumbi v China Road Bridge Corporation (Kenya). (Cause 813 of 2018) [2023] KEELRC 2853 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2853 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 813 of 2018

B Ongaya, J

November 10, 2023

Between

Kasembi Muthumbi

Claimant

and

China Road Bridge Corporation (Kenya).

Respondent

Judgment

1. The claimant filed the amended statement of claim amended on July 5, 2022 through A.N Oeri & Company Advocates. The claimants prayed for judgment against the respondent for:a.Kes 319,262. 40 being 12 month’s pay for unfair terminationb.Exemplary damages to be assessed by the Honourable Court for discrimination against the claimant on the basis of her health.c.Interest on (a) and (b) at Court rates till payment in full.d.Costs of this suite.Interest on (a), (b), (c) and (e) abovef.Any other relief that this honourable court may deem fit and expedite to grant.

2. The claimant pleaded that she was employed by the respondent on contractual basis for a period of one (1) year and six (6) months commencing July 2016.

3. That she performed her duties diligently and to the respondent’s satisfaction until January 2018 when the respondent unlawfully and unfairly terminated her employment on the alleged ground of completion of the work.

4. The claimant states that despite the respondent’s contention that the work had been completed, the real reason behind her termination was in-fact discriminatory and on the basis of her ill health having gone through a surgical procedure.

5. The claimant urged the honourable court to find her claim with merit and allow it in terms of the reliefs sought therein.

6. In response to the claim, the respondent filed an amended response to the statement of claim amended on May 9, 2023 through the firm of Gicheru & Company Advocates in which it admits having engaged the claimant.

7. The respondent however denied unlawfully and unfairly terminating the claimant’s employment as contended and maintained that the claimant voluntarily resigned from her employment upon being reassigned duties to a cleaner following the completion of the project the claimant was involved in.

8. The respondent states that its decision to reassign the claimant fresh duties was communicated vide its letter dated January 26, 2018. Upon receipt of the letter the claimant verbally rejected the offer and indicated that she would rather get terminated than work as a cleaner.

9. That the respondent convened a meeting to hear the complaints from the claimant, after which the claimant’s employment was terminated in accordance with her wishes.

10. The respondent states that all terminal dues payable to the claimant where paid and that the claimant has no claim against the respondent.

11. The respondent argues that the claim lacks merit and should be dismissed with costs to the respondent.

12. The matter was referred to mediation and parties recorded a partial consent in which parties agreed as follows:a.That there was no issue relating to payment of salary, notice, public holidays, service pay, in effect all terminal benefits as these had been rightly paid.b.The issue as to whether the termination was lawful or unlawful is the only matter to be determined by the court.c.Parties to inform the court of this at the next mention of the case.

13. The consent was duly signed, filed in Court and form part of the court record in this matter.

14. The matter thereafter proceeded to hearing on July 5, 2023 with the claimant testifying as CW1 and the respondent calling one witness (RW), Delilah Wendy Aminilwa, an assistant personnel manager with the respondent testifying as RW1 on behalf of the respondent.

15. Final submissions were filed for the claimant on August 2, 2023 and for the respondent on September 1, 2023.

16. The court has considered all the material on record and returns as follows.

17. To answer the 1st issue for determination the court returns that there is no dispute that the parties were in a contract of employment. The respondent employed the claimant in the position of a cook from November 2015 to 13. 07. 2016. From July 2016, the claimant was re-engaged on contract as a cook at the project known as section No 2 Nairobi ICD Yard and Access Roads and she was deployed at the Langata site.

18. To answer the 2nd issue, the contract of employment was terminated. Parties are in dispute whether it was by the letter of termination of employment dated March 26, 2018 on account of completion of work or it was on account of the claimant’s health situation or was on account of the terms of the signing of the reassignment of duty – hearing summary dated January 27, 2018.

19. To answer the 3rd issue, the Court finds that the termination was not unfair both in procedure and substance.

20. The contract of service expressly stated that the employment period was project specific and the employment period could not extent beyond the completion of the project known as section 2 Project Site Office Nairobi ICD Yard & Access Road Project. The claimant pleaded that the real reason for her termination was that she had been unwell. However, in her testimony she confirmed that she fell ill, went for treatment including a major surgery at AIC Kijabe Hospital, she was discharged on November 4, 2017 and, resumed duty on 08. 01. 2018. She testified that she had recovered and came back to work. She confirmed that throughout the three months of sick leave the respondent paid her salaries.

21. Further, the respondent paid all the medical bills and she was refunded all related medical expenses. While she testified that she reported to her lawyer about discrimination on health grounds, by her own testimony, the Court returns that the respondent treated her fairly in accordance with the law throughout the sick leave and the respondent met all obligations to provide medical attention per section 34 of the Employment Act. The alleged discrimination is found inconsistent with her own testimony and the Court finds that discrimination has not been established at all.

22. The claimant testified that on January 8, 2018 she reported at work as a cook and she was told not to do the job. She stated that she trusted that decision was made because it was feared that she could communicate the disease in view of the sensitive work of a cook. It was her testimony that in fact she had been treated and fully recovered. She was later summoned and given a letter stating that the project had ended. Her testimony was that others continued to work on the project she denied that she had been not been reassigned as a cleaner as alleged for the respondent. She stated that she left on January 26, 2018 and never signed the re-assignment of duty hearing summary dated January 27, 2018 by which the respondent says she signed accepting to separate as she did not accept to be re-assigned as a cleaner. The summary states that she was reassigned as a cleaner but she declined and demanded that she be paid her terminal dues and parties to separate. In her testimony she admitted receiving the full terminal dues and a certificate of service. The testimony is substantially consistent with the hearing summary dated January 27, 2018. The Court finds that on a balance of probability, the claimant signed the hearing summary and having pocketed the proceeds of the separation terms per the re-assignment of duty – hearing summary, the parties are bound and the summary once signed as was done, amounted to a separation agreement. The court finds that the parties separated by agreement per the reassignment of duty -hearing summary signed by both parties on January 27, 2018. They were entitled to agree to separate and the termination of the contract of service was not unfair. The respondent in the pleadings calls the claimant’s refusal to accept the re-assignment to have been a resignation. However, the court has found it was an agreement to separate. It also appears that the project had ended but the respondent had decided to retain the claimant to serve the officials who were involved in handing over the project. There appears a decision was made to reorganize and assign the claimant light duties of a cleaner rather than a cook but at same remuneration and other benefits. There is nothing to suggest the respondent mistreated or discriminated the claimant upon her health situation, and which she has confirmed, to have already recovered from. The court finds no unfairness or discrimination established against the respondent in the circumstances of the case.

23. The respondent’s submissions that the termination was not unfair are upheld and the claimant has not established any of the reliefs claimed and prayed for. The suit will be dismissed with costs. Orders accordingly.

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