[2015] KEELRC 1440 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 2250 OF 2012

NAHASHON CHERUIYOT NGENO......................................................................................................CLAIMANT

VS

STRENGTHENING OF MATHEMATICS & SCIENCE EDUCATION PROJECT..................1ST RESPONDENT

CENTRE FOR MATHEMATICS, SCIENCE & TECHNOLOGY EDUCATION IN AFRICA...2ND RESPONDENT

AWARD

Introduction

1. By a Memorandum of Claim dated 18th December 2012 and filed in Court on 13th March 2013, the Claimant sued the 1st and 2nd Respondents for unlawful and unfair termination of employment. The Respondents filed separate Memoranda of Defence on 23rd April 2013 through the firm of Memba Muriuki & Co. Advocates and a joint Memorandum of Reply on 7th August 2013 through the Attorney General. The Claimant's case was heard on 7th October 2014 but the Respondents did not call any witnesses in spite of adequate opportunity to do so.

The Claimant's Case

2. The Claimant was employed by the 2nd Respondent as a driver on a three year contract running from 15th April 2010 to 31st December 2013. The contract was renewable subject to exemplary performance and availability of funds.

3. The Claimant worked under the supervision of the 1st Respondent. On 3rd February 2012, the 2nd Respondent issued the Claimant with a show cause letter citing allegations of several acts of misconduct. The Claimant responded to the show cause letter on 10th February 2012 denying all the allegations leveled against him. He appeared before the 2nd Respondent's Board on 25th April 2012 and on 2nd May 2012 he was dismissed by a letter emanating from the 1st Respondent's Advocate.

4. The Claimant pleads that the termination of his employment was unjustifiable and unfair and therefore claims the following:

A declaration that the termination of his employment was unlawful

Compensation for breach of contract..................................Kshs. 232,392

Gratuity.........................................................................Kshs. 134,092

Underpayment................................................................Kshs. 14,376

Costs and interest

The Respondents' Case

5. In its Memorandum of Defence, the 1st Respondent states that the Claimant was an employee of the 2nd Respondent employed to work under the supervision of the 1st Respondent. The 1st Respondent adds that besides supervising the Claimant, it paid his salary directly to the 2nd Respondent for onward transmission to the Claimant.

6. As the party with supervisory powers over the Claimant, the 1st Respondent wrote a report to the 2nd Respondent on the Claimant's performance. The 1st Respondent goes on to state that it did not participate in any disciplinary proceedings against the Claimant. It however issued the notice of termination of employment dated 2nd May 2012 through its Advocate. The 1st Respondent avers that the sum of Kshs. 72,248 paid to the Claimant was paid in error. It is the 1st Respondent's case that it is wrongly joined in this case as there was no employment relationship between itself and the Claimant.

7. On its part, the 2nd Respondent states that it received a report from the 1st Respondent on the Claimant's performance on the basis of which the 2nd Respondent wrote to the Claimant asking him to respond to the allegations made against him. The 2nd Respondent subsequently constituted a disciplinary panel to hear the Claimant. According to the 2nd Respondent, the Claimant stopped reporting for work at the end of April 2012, before the 2nd Respondent's Board had made a decision on his case. The 2nd Respondent further states that it did not issue any termination notice to the Claimant nor did it take any steps towards effecting a termination of the Claimant's employment.

8. The 2nd Respondent submits that there was no contract of employment as between the 1st Respondent and the Claimant as the role of the 1st Respondent was only to supervise and pay the Claimant's salary. The termination notice dated 2nd May 2012 from the 1st Respondent was therefore ineffective and could not terminate the Claimant's contract of employment with the 2nd Respondent. It is the 2nd Respondent's case that it was in fact the Claimant who terminated the employment contract by failing to report for duty from April 2012.

9. In the joint Memorandum of Reply filed on 7th August 2013, the Respondents state that the Claimant's dismissal was a consequence of professional misconduct and insubordination to wit;

The Claimant's misuse of project motor vehicle and re-assigning of his official tasks to other persons without following the official channel;

Inappropriate recording of work ticket for the month of December 2011;

The Claimant's failure to adhere to instructions issued by his senior; and

Making fraudulent entries on records with regard to fuel supplies for Motor Vehicle Registration No. KAL 339L.

10. The Respondents further plead that the Claimant's dismissal followed investigations which revealed gross misconduct on the part of the Claimant. According to the Respondents, the process leading to the Claimant's dismissal was lawful and fair

Findings and Determination

11. The following issues call for determination by the Court:

Whether there was an employment relationship between the Claimant and both the 1st and 2nd Respondents;

Whether the termination of the Claimant's employment was justifiable, procedural and fair;

Whether the Claimant is entitled to the reliefs sought.

Employment Relationship

12. From the record, the Claimant's employment was formalised by an appointment letter dated 15th April 2011 issued by CEMASTEA, the 2nd Respondent herein. The letter states in part:

“RE: APPOINTMENT TO THE POST OF DRIVER

Following your application for the above post and subsequent interview, I am pleased to inform you of the Board's decision that you be appointed to the post of Driver, Job Group F, with effect from 1st April 2010 on JICA terms and conditions of Employment.

This appointment is on a THREE-YEAR contract pegged to the SMASE Project Period that ends on 31st December 2013, and may only be renewable subject to exemplary performance of duty and availability of funding coupled with suitability report from your supervisor.

NB: Your monthly salary will be paid by SMASE Project, while the Board of Governors, CEMASTEA shall pay your Gratuity on the expiry of your contract.

Yours faithfully

Cecilia C. Ngetich

Director, CEMASTEA/Secretary BOG CEMASTEA”

13. From this letter, it emerges that the Claimant was recruited by the 2nd Respondent and then seconded to work for the 1st Respondent. In determining the parameters of an employment relationship within the context of a secondment, the Court is required to examine the intention of the parties as evidenced by their conduct and relevant documentation.

14. It is my view that, in assigning responsibilities to the parties in a secondment arrangement, the traditional tests of control and supervision are not adequate. In the Indian case of Centrica India Offshore PVT Ltd Vs CIT (W.P.(C) No. 6807/2012 (Del) the Delhi High Court held that an employee who is seconded to work for a secondment employer for a specified period of time remains an employee of the primary employer.

15. In the instant case, the Claimant was seconded by the 2nd Respondent to work for the 1st Respondent for a specified period of three years. According to the letter of appointment, the 1st Respondent would pay the Claimant's salary while the 2nd Respondent would pay his gratuity. Looking at the circumstances surrounding the Claimant's employment in totality, the Court has arrived at the conclusion that the 2nd Respondent was the Claimant's primary employer and that there was no intention that this responsibility be transferred to the 1st Respondent.

The Termination

16. Having settled the question as to who the Claimant's primary employer was, I will now consider the termination of the Claimant's employment. On 2nd May 2012, the firm of Memba Muriuki & Co. Advocates, acting for the 1st Respondent wrote to the Claimant as follows:

“TERMINATION OF EMPLOYMENT

OUR CLIENT: STRENGTHENING OF MATHEMATICS AND SCIENCE EDUCATION PROJECT (SMASE)

We regret to inform you that your employment with our client is hereby terminated with effect from the 2nd May 2012.

Your dues will be calculated accordingly and given to you immediately. As of the date of termination, it is essential that you return any of our client's property in your possession, that is, keys to the car and any material and/or document issued to you.

You will be issued with a certificate of service by our client. Our client thanks you for your time and wishes you the best of luck in the future.

Yours faithfully,

MEMBA MURIUKI & CO.”

17. In light of my finding that the 2nd Respondent remained the Claimant's primary employer, it is as clear as day that the 1st Respondent had no mandate to terminate the Claimant's employment. If for some reason the 1st Respondent was dissatisfied with the Claimant's performance or conduct, the right thing to do would have been to ask the 2nd Respondent as the primary employer to recall the Claimant. A secondment employer has no authority in law to terminate the employment of a seconded employee except in cases where the primary employment contract has been expressly terminated.

18. In light of the foregoing, the Court finds that the termination of the Claimant's employment as communicated by the 1st Respondent's Advocate by letter dated 2nd May 2012 was unprocederal and unlawful. The Court also finds that by seconding the Claimant to the 1st Respondent, the 2nd Respondent created a principal/agency relationship between itself as the principal and the 1st Respondent as the agent. The 2nd Respondent was therefore vicariously liable for the 1st Respondent's wrongful act of terminating the Claimant's employment.

19. I therefore make an award in favour of the Claimant and against the 2nd Respondent in the sum of Kshs. 115,980 being the equivalent of six months’ salary in compensation for unlawful termination of employment. In making this award I have taken into account the Claimant’s length of service as well as the 2nd Respondent’s conduct in the termination of the Claimant’s employment.

20. I further direct the 2nd Respondent to calculate and pay to the Claimant gratuity for the period served, within the next 30 days from the date of this award. Any amounts already paid to the Claimant will be discounted from this award. The claim for underpayment was not proved and is dismissed.

21. I award the costs of this case to the Claimant.

Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF FEBRUARY 2015

LINNET NDOLO

JUDGE

DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF FEBRUARY 2015

HELLEN WASILWA

JUDGE

Appearance:

Mr. Nyabena for the Claimant

Mrs Memba Muriuki for the 1st Respondent

Ms. Kassim for the 2nd Respondent