[2023] KEELRC 2326 (KLR)

Nyambane v Eveready Security Guards Company Ltd (Cause 542 of 2017) [2023] KEELRC 2326 (KLR) (2 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2326 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 542 of 2017

JK Gakeri, J

October 2, 2023

Between

Fredrick Gekonge Nyambane

Claimant

and

Eveready Security Guards Company Ltd

Respondent

Judgment

1. The Claimant initiated this claim by a Memorandum of Claim filed on 20th March, 2017 alleging unlawful termination of employment and non-payment of terminal dues.

2. The Claimant testified that he joined the Respondent “on or about May 2011. ”

3. That on 19th December, 2016, he was summoned to the office and was to report the following day as well and was to be away from 20th December, 2016 to 28th December, 2016.

4. That on his return, he was instructed to remove his uniform and leave the premises and no reasons for termination was given.

5. It is also the Claimant’s case that he was chased away by the company director on account of having persistently raised the issue of National Social Security Fund deductions.

6. The Claimant prays for;i.A declaration that his termination by the Respondent is illegal and/or unlawful and was thus entitled to severance pay, terminal benefits, 3 months in lieu of notice, salary underpayments amounting to Kshs.312,500/=.ii.General damages for wrongful dismissal.iii.Costs of this suit and interest.iv.Any other relief that this honourable court may deem fit and just to grant.

Respondent’s case 7. In its response to the statement of claim, the Respondent admits that the Claimant was employee from 21st July, 2011 and avers that on 16th December, 2016, the Claimant was found stealing scrap metal from the Respondent’s clients premises before his shift ended at 6. 00 am. The scrap metal was stacked in empty cement bags and had more of it on 18th December, 2016 and admitted the same when questioned about it at the Respondent’s office.

8. That the Claimant refused to report to Ruiru on transfer as the theft was being investigated.

9. It is the Respondent’s case that the Claimant’s employment was terminated for misconduct.

Claimant’s evidence 10. On cross-examination, the Claimant testified that his employment was terminated on the ground of theft but confirmed that he was a diligent employee.

11. The witness refused to confirm whether he had reported to work late as documents availed by the Respondent showed. He testified that the signature on two of the documents was not his.

12. The witness initially denied that the PF No. on page 2 was his but when directed to the page by counsel for the Respondent, he admitted that it was his as was the PF No. on pages 15 to 18.

13. He testified that the signature on page 15 was not his.

14. The Claimant admitted that he had been warned for sleeping while on duty.

15. The witness admitted having collected scrap metal on the site without permission.

16. He admitted having lied that his employment was terminated because of having enquired about National Social Security Fund contributions.

17. The Claimant further testified that he was neither invited nor taken through a disciplinary hearing

18. He denied having received the letter dated 19th December, 2016 on suspension and invitation for a hearing on 28th December, 2016. The witness maintained that he was employed on 12th May, 2011.

19. The witness admitted having lied about the date of employment and admitted that he applied for employment on 12th July, 2011.

20. It was his testimony that he was not paid for the month of December 2016 but admitted having been paid for the 19 days worked in December 2016.

21. The witness admitted that he did not know why his employment was terminated and had not complained about housing allowance.

22. On re-examination, the witness admitted that the signature on the witness statement was his but the one on page 16 was not.

23. That he was not given the suspension letter.

Respondent’s Evidence 24. Mr. Paul Muriuki Njung’u, on cross-examination confirmed that the explanations given by the Claimant at the hearing were not filed.

25. That the Claimant received the letter of suspension though he did not acknowledge receipt.

26. On re-examination, RWI testified that the Respondent had evidence of the disciplinary hearing.

Claimant’s Submissions 27. Counsel for the Claimant submitted on whether termination of the Claimant’s employment was merited and entitlement to the reliefs sought.

28. On termination, counsel submitted that the summary dismissal of the Claimant was without reason and/or due process after attempting to report an assault case against one of the Respondent’s guards.

29. Counsel urged that the Respondent had no valid reason to dismiss the Claimant as provided by Section 43 and 45 of the Employment Act, 2007 and the provisions of Section 41 were not complied with as the Claimant was not invited for a disciplinary hearing and was thereby denied the right to be heard in the presence of a witness of his choice.

30. That the Claimant was entitled to house allowance in consonance with the provisions of Section 31 of the Employment Act, 2007.

31. Further, counsel relied on the decisions in Hosea Akunga Ombwori V Bidco Oil Refineries Ltd (2017) eKLR, Samsung Electronics East Africa Ltd V K M (2017) eKLR and County Assembly of Kisumu & 2 Others V Kisumu County Assembly Service Board & 6 others (2015) eKLR to urge that the Respondent had not discharged its burden under Section 47(5) of the Employment Act, 2007.

32. The decision in Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd (2014) eKLR was also cited to reinforce the submission on procedural propriety in termination of employment.

33. Counsel urged the court to enter judgement in the Claimant’s favour for the sum of Kshs.312,500/= with costs.

34. By 4th August when the court retired to prepare this judgement, the Respondent had not filed its submissions.

Findings And Determination 35. From the pleadings, evidence and submissions by the Claimant’s counsel, the issues for determination are;i.Whether termination of the Claimant’s employment was unfair or unlawful.ii.Whether the Claimant is entitled to the reliefs sought.

36. As regards termination of employment, while the Claimant alleges that it was unfair, the Respondent testified that it was fair as the Claimant had been found with scrap metal packed in empty cement bags and refused to shift to Ruiru.

37. Needless to emphasize, the provisions of the Employment Act, 2007 and case law are unambiguous that for a termination of employment to pass the fairness test within the meaning of Section 45 of the Employment Act, 2007, it must be shown that there was a valid and fair reason to do so and the termination was conducted in accordance with a fair procedure.

38. As appropriately captured by Ndolo J. in Walter Ogal Anuro V Teachers Service Commission (2013) eKLR, a fair termination of employment is characterised by a substantive justification and procedural fairness as follows;“. . . for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness . . .”

39. The Court of Appeal expressed similar sentiments in Naima Khamis V Oxford University Press (E.A) Ltd (2017) eKLR.

40. The provisions of Sections 41, 43, 44, 45 and 47(5) of the Employment Act, 2007 embody these two requirements.

41. I will now proceed to apply the foregoing provisions and proposition of law to the facts of the instant case.

Reason For Termination 42. Although none of the parties filed a letter of termination of employment, it is evident that the Respondent terminated the Claimant’s employment on or about 28th December, 2016.

43. This is evident from the Claimant’s written statement dated 22nd February, 2017 where he admits that he was to leave the station from 20th December, 2016 to 28th December, 2016 which he did and was dismissed from employment when he returned, although he did not disclose the date when he returned and why he was to leave the station.

44. Unsurprisingly, the dates he was to be away correspond with those in the letter of suspension dated 19th December, 2016 whose receipt he denied.

45. In the absence of a termination letter or notice to show cause, the reason for termination, if any, is decipherable or may be gleaned from the evidence adduced by the parties.

46. According to the Respondent, the Claimant was found in possession of scrap metal in used cement bags at his duty station on 16th and 18th December, 2016.

47. According to RWI, a client by the name Challenge Engineering Works Ltd, where the Claimant was stationed, had complained that the Claimant had been found stealing scrap metal in the compound before his shift ended at 6. 00 am. Although RWI had no tangible evidence of the event, the Claimant’s letter dated 19th December, 2016 gives credence to the allegations of theft.

48. The Claimant admitted in court that on Friday 16th December, 2016 he had “collected old metal that had been dumped there few days ago” and had been found with them by the ‘incharge’ and according to the Claimant, the “incharge” was satisfied that it was old metal.

49. The Claimant did not explain how the incident on 16th December, 2016 reached the Respondent if it had been resolved by the “incharge” and what the “incharge” instructed him to do with the “old metal” he had collected. RWI confirmed that on 18th December, 2016, he was sent to investigate the matter and found the Claimant with more scrap metal stacked in used cement bags ready to be smuggled out of the premises.

50. In the court’s view, the Claimant’s allegation about an ‘incharge’ who was not named was not credible.

51. On cross-examination, the Claimant admitted that he collected the scrap metal without the authority of the Respondent’s client.

52. Noteworthy, paragraph 4 of the minutes of the alleged disciplinary meeting held on 28th December, 2016 show that the committee resolved that the Claimant was guilty of misconduct for having been found with more scrap metal on 18th December, 2016.

53. Similarly, the allegation that the Claimant refused and/or failed to report to Ruiru was also true as his letter to the Respondent dated 28th December, 2016 attests.

54. The letter is the Claimant’s justification for the failure to obey instructions by the employer.

55. A comment on the letter states that the Claimant “be dismissed for involvement in theft and failure to obey to relocate to Ruiru” dated on same date.

56. Puzzlingly, the claimant’s written statement states that his employment was terminated because he had enquired about National Social Security Fund contributions severally, a statement he admitted was untrue.

57. On signatures, the Claimant contested the one on page 16, a warning letter dated 23rd March, 2015 as well as the one on page 17, another warning letter dated 30th April, 2015 and page 15 another warning in 2014.

58. Intriguingly, although the Claimant admitted that the signature on his witness statement was his, it is not identical to any of the other signatures he admitted as his and in particular the hand written letters dated 12th July, 2011 and 28th December, 2016. The letter dated 19th December, 2016 was not signed.

59. Equally, the signatures on the Leave Application Forms for 2014, 2015 and 2016 are not identical as are those on the off-duty authorization forms dated 27th August, 2012, 29th April, 2013 and 23rd September, 2016.

60. It is also not lost to the court that on cross-examination, the Claimant initially denied that the PF No. on the warning letters was his but when shown the forms, he changed his testimony.

61. In a nutshell, the court found the oral testimony of the claimant too contradictory to rely on and as a consequence places heavy reliance on the documents on record.

62. Section 43(2) of the Employment Act, 2007 provides that;“The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.”

63. For the foregoing reasons, it is the finding of the court that the Respondent has proved on a preponderance of probabilities that it had a valid and fair reason to terminate the Claimant’s employment on 28th December, 2016.

Procedure 64. As held by the Court of Appeal in Pius Machafu Isindu V Lavington Security Guards Ltd (2017) eKLR, Section 41 of the Employment Act, 2007 prescribes an elaborate and mandatory process to be complied with by the employer for a termination of employment to pass the fairness test.

65. The specific precepts of Section 41 have been isolated by this court and the Court of Appeal in legions of cases including Loice Atieno V Kenya Commercial Bank Ltd (2013) eKLR and Postal Corporation of Kenya V Andrew K. Tanui (2017) eKLR.

66. These tenets include explanation of the reasons for termination to the employee in a language the employee understands, entitlement of the employee to a fellow employee or shop floor representative during the explanation, right of the employee and/or the representative to make representations and their consideration by the employer.

67. In the instant suit, the Claimant testified that he was not invited for or taken through a disciplinary hearing. On the other hand, RWI testified that the Claimant was invited but his representations and the proceedings were not filed.

68. In determining whether termination of the Claimant’s employment was procedurally fair, it is imperative to determine whether the provisions of Section 41 of the Employment Act, 2007 were complied with.

69. As regards notice, the Respondent did not adduce evidence to show that it issued a notice to show cause or disclosed to the Claimant the charges he was facing.

70. It requires no belabouring that it is incumbent upon the employer to demonstrate evidentiary how it communicated the charges against the employee.

71. The letter of suspension and invitation to a disciplinary meeting dated 19th December makes no reference to the charges or allegations the Claimant was facing. In any event, the Claimant was being suspended for further investigations.

72. Suffice it to state that the Respondent tendered no evidence to demonstrate that the letter was served on the Claimant.

73. Similarly, the alleged minutes of the disciplinary meeting dated 28th December, 2016 consists of four (4) short paragraphs of less than half a page and make no reference to the fact that the charges were explained to the Claimant on the date of hearing and as confirmed by RWI, the proceedings were not filed rendering the purported minutes incomplete and ineffectual as minutes of the meeting.

74. It is unclear to the court whether any evidence was led in support of the allegations and how congent it was.

75. The totality of the foregoing is that the Respondent has failed to demonstrate that it afforded the Claimant a fair hearing as envisioned by the provisions of Section 45(2)(c) of the Employment Act, 2007.

76. The foregoing finds support in the sentiments of the Court of Appeal in Postal Corporation of Kenya V Andrew K. Tanui (Supra) as follows;“In this case, the letter inviting the Respondent to appear before the Board was only two lines containing the date and venue. It said nothing about the reasons for such invitation. It said nothing about the Respondent appearing with another employee of his choice. The retort that an employer has no obligation to ask the employee to be accompanied does not avail the appellant because the law requires that such other person be present to hear the grounds of termination and if so inclined, make representations thereon. A hearing not so conducted is irregular. At the board meeting, there is no evidence that an explanation of the grounds of termination was made to the Respondent, and if so, in what language . . .”

77. For the foregoing reasons, it is the finding of the court that the Respondent has failed to demonstrate that termination of the Claimant’s employment was procedurally fair.

Reliefs a. Declaration 78. Having found that termination of the Claimant’s employment was unfair for want of procedural propriety, a declaration that the termination was unfair is merited.

b.3 Months In Lieu Of Notice 79. In the absence of a written contract of service or Collective Bargaining Agreement (CBA), it is unclear to the court how the Claimant arrived at the 3 months but with no evidence that Respondent paid in lieu of notice, the Claimant is awarded one month’s salary as notice pay, Kshs.12,500/=.

c.December Salary 80. On cross-examination, the Claimant admitted that he worked for 19 days in December 2016 and the tabulation of his dues dated 10th July, 2016 reveal that he was paid for the 19 days. The prayer is dismissed.

d.House allowance at 15% of the duration worked 81. In the absence of a written contract of service, it is unclear as to whether the Claimant’s salary was inclusive of house allowance which is an employee’s right under Section 31 of the Employment Act, 2007.

82. Although a pay slip is not the contract of employment, it would have demonstrated whether it had an entry on house allowance but none was provided.

83. Significantly, although the Claimant prayed for house allowance at 15%, he adduced no evidence to prove that it was not paid. Neither the written statement nor the testimony adduced in court adverted to the fact that housing allowance was not paid.The prayer is disallowed.

e.General Damages For Wrongful Dismissal 84. The Claimant adduced no evidence of entitlement to general damages. However, having found that the termination of the employment was unfair, the Claimant is entitled to the relief under Section 49(1)(c) of the Employment Act, 2007.

85. In determining the quantum of compensation, the court has taken into consideration the following;i.The Claimant was an employee of the Respondent from July 2011 to December 2016, a period of about 5 years and 5 months.ii.The Claimant neither appealed the Respondent’s decision nor demonstrate his wish to continue in the Respondent’s employment.iii.The Claimant had a total of four (4) warning letters from 2014 to 2016 for sleeping while on duty.iv.The Claimant substantially contributed to the termination of employment by his conduct.

86. In the circumstances, the court is satisfied that the equivalent of 3 months salary is fair.

f.Certificate Of Service 87. The Claimant is entitled to a certificate of service by dint of Section 51 of the Employment Act, 2007.

88. In the upshot, judgement is entered for the Claimant against the Respondent in the following terms;a.Declaration that termination of the Claimant’s employment was unfair and unlawful.b.One month’s salary in lieu of notice, Kshs.12,500/=.c.Equivalent of 3 month’s gross salary, Kshs.37,500/=.Total Kshs.50,000/=_d.Costs of this suit.e.Interest at court rates from the date of judgement till payment in full.f.Certificate of service.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 2ND DAY OF OCTOBER 2023DR. JACOB GAKERIJUDGEORDERIn 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 has 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.DR. JACOB GAKERIJUDGE