[2023] KEELRC 2651 (KLR)

Owino v Radiant Power System Limited (Petition E094 of 2022) [2023] KEELRC 2651 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2651 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E094 of 2022

J Rika, J

October 27, 2023

Between

Stephen Juma Owino

Petitioner

and

Radiant Power System Limited

Respondent

Judgment

1. The Petitioner filed this Petition, on 14th June 2022. The Petition is founded on the Petitioner’s Affidavit, sworn on 13th June 2022. He relies also, on his Further Affidavit, sworn on 10th November 2022.

2. He states that, he was employed by the Respondent as an electrical technician in September 2015, earning a basic monthly salary of Kshs 16,078 and house allowance of Kshs 3,537.

3. He states that, he was promoted to the position of site supervisor in the month of March 2018, due to his exemplary performance.

4. His position, is that the Respondent failed to pay him equal pay, for work of equal value. His colleagues who were site supervisors, Douglas Galia Maduresi, Peter Mwangi Irungu, and John Onyango, were paid monthly salaries of Kshs 23,478, Kshs 48,443 and Kshs 48,443 respectively. The Claimant was paid Kshs 16,078 monthly.

5. There was no explanation, or legal basis, for paying to the Petitioner less than the other site supervisors.

6. He states that such payment amounted to violation of his constitutional rights and statutory rights, under Articles 27(1), (2) and (5), 35(1)(b), 41 (1) of the Constitution, and Section 5(2) (3) of the Employment Act. He suffered discrimination and unfair labour practices.

7. The Petitioner explains that the Employees worked for Reliable Electrical Engineering Limited initially, before the business split in 2015, giving rise to the Respondent. The Petitioner and the other site supervisors were employed by the Respondent after the business split.

8. The Petitioner states that his contract was terminated by the Respondent on 22nd April 2022, on the allegation that he allowed unauthorized entry of third parties to the site, and attempted to steal from the Respondent.

9. He was presented with the charges, and heard, but the process was fundamentally unfair. He was asked to go home by the Respondent’s Director, Chirag Bharidva, because he had been dismissed for stealing. He did not however get immediate feedback, while waiting at home.

10. He eventually contacted the accountant, but nothing came out of this. He was not paid terminal dues, and when he threatened to take legal action, the Respondent issued him a letter to show cause, over the same issues he had been verbally dismissed by Chirag. The disciplinary process was initiated to sanitize violations of the law.

11. He was being coerced to sign a letter of apology admitting wrongdoing, in order to continue working, a demand he declined. He was then invited for disciplinary hearing on 6th April 2022. The process was unfair, because his contract had already been terminated. He was denied copies of the minutes recording the disciplinary hearing.

12. He was accused of allowing a third party, to drive in to the site, motor vehicle KAA 663 F, and to steal PVC conduits on 25th February 2022. This was a false accusation. The security guard manning the gate, did not take details of the driver, when the vehicle drove in.

13. The alleged third party was a friend of the Petitioner, Francis Aming’a, who accessed the gate on foot, and who left the scene as soon as he had exchanged pleasantries with the Petitioner. Aming’a gave evidence at the disciplinary hearing, and clarified that he visited the Petitioner briefly, and did not attempt to steal anything from the Respondent.

14. The Petitioner’s contract was renewed annually. The alleged theft took place on 25th February 2022, and the Petitioner’s contract was renewed on 26th February 2022, despite the allegations facing him.

15. The Respondent deducted salary for 19 days, and later for 12 days of absence, after the Petitioner protested. The Petitioner was never away without the leave of the Respondent. It was the Respondent, who had asked him to keep away, pending the outcome of the disciplinary process.

16. He was underpaid, receiving a monthly basic salary of Kshs 16,078, against a minimum statutory salary of Kshs 30,677. 45 for electrician, artisan grade 1. The Petitioner held this grade.

17. House allowance was paid at Kshs 3,537 monthly, instead of Kshs 4,594. 11.

18. The Petitioner prays for Judgment against the Respondent for: -a.Equivalent of 12 months’ salary in compensation for unfair termination, based on the scale applicable to the Petitioner’s grade, at Kshs 367,529. b.Underpayment of salary at Kshs 14,549. 45 per month x 80 months, at Kshs 1,163,956. c.Unpaid house allowance at Kshs 1,057. 11 per month x 80 months at Kshs 84,658. 80. d.Unlawful deduction at Kshs 9,339. Total … Kshs 1,625,393. e.Compensation for constitutional violations.f.Costs.g.Interest.h.Any other suitable relief.

19. He relies further on his Affidavit sworn on 10th November 2022. He restates that he was a foreman / supervisor, employed by the Respondent in 2015, when the Respondent commenced operations. He was first employed as a technician, then assigned duties which were not specified in subsequent contracts. He was in charge of different sites. He states that an apology he tendered to the Respondent, related to an incident which took place in November 2021, and was unrelated to termination. A report exhibited by Akshar Team Security on the alleged attempted theft of conduits, was not availed to the Petitioner before the disciplinary hearing. Its author Elijah Obuya, was not called as a witness, at the disciplinary hearing. The report is an afterthought. The Petitioner was never placed on suspension; instead, he was orally dismissed by Chirag, before being recalled for disciplinary hearing. The owner of the motor vehicle allegedly used in attempted theft, was never interrogated.

20. The Petition is also supported by the Affidavit of Douglas Galia Maduresi sworn on 13th June 2022. He confirms that he, alongside the Petitioner, Peter Mwangi and John Onyango, worked for the Respondent as site supervisors. The other site supervisors were paid higher monthly basic salaries than was paid to the Petitioner. Maduresi confirmed he was paid Kshs 23,478 monthly, while discharging the same work as the Petitioner. He states that the 4 site supervisors were employed on the same date in 2015. Maduresi exhibited his pay slip for August 2020.

21. The Respondent opposes the Petition, relying on various Affidavits. Director Chirag Bharidva swore his Affidavit on 1st November 2022; Procurement Manager Chandrakant Parmar swore his on 3rd October 2022; Security service provider, Akshar Limited, provided an Affidavit sworn by its Operations Officer Elijah Obuya, on 1st November 2022; and Security Guard Stephen Kuyanda swore an Affidavit on 1st November 2022.

22. Chirag confirms that the Petitioner was employed by the Respondent as a technician, in 2015, on a gross monthly salary of Kshs 18,375. He was never promoted to the position of site supervisor / foreman. His contract, in the role of a technician, was renewed annually. He remained a technician until his contract was terminated. He could not have been discriminated against in terms of salary paid, because he was not a site supervisor/ foreman. His salary could not be compared to that of site supervisor / foreman.

23. In any event, Employees listed by the Petitioner as site supervisors / foremen, worked in different positions and were more experienced. Maduresi was a site supervisor who deserted employment. On 25th February 2022, at Muthithi construction site, the Petitioner allowed an unauthorized pick-up vehicle, KAA 663 F in to the site, and together with its driver, loaded the vehicle with 2 big size and 4 small size conduit pipes. The pipes belonged to the Respondent.

24. The Respondent was alerted to this employment offence by the day shift security guard Kuyanda, and the main contractor’s officer, Dinesh. The conduits were unloaded; the Petitioner suspended; investigations carried out by Akshar Team Security; and the investigations report shared with the Respondent and the main contractor.

25. The Petitioner was on 29th March 2022, asked to show cause why he should not be disciplined, for the afore-stated offences. He did not attend the intended show cause session. He later expressed his desire to present himself, and a disciplinary meeting was convened on 6th April 2022. He was heard, and his witness testified. He was found guilty, and his contract terminated forthwith. He was paid terminal dues, computed at Kshs 19,622. The monthly salary paid was consensual, and the Petitioner signified his consent, through his execution of the various contracts. He was likewise, paid house allowance.

26. Procurement Manager Parmar, denied that the Petitioner was discriminated against. The Respondent treats all its Employees equally. The Petitioner was never employed as a site supervisor / foreman. Parmar confirms that the Petitioner was involved in offences against the Respondent; the allegations were investigated; and the Claimant taken through a disciplinary hearing, proceedings which Parmar minuted.

27. Operations Officer, Akshar Team Security, Elijah Obuya, depones that his firm provided security at Muthithi construction site. Elkay & Sons was the site contractor. The Respondent had been sub-contracted to carry out electrical installations. A security guard from Akshar Team Security, was on duty at the site, on 25th February 2022. He reported the attempted theft, and Akshar Team Security investigated. It was established that the Petitioner attempted stealing Respondent’s conduits from the site. The investigation report was shared with the contractor and the sub-contractor (Respondent). The incident was not escalated to the Police, as the Respondent undertook to deal with it administratively.

28. Security Guard Stephen Kuyanda, corroborates the evidence given by Elijah Obuya, in his affidavit. He explained that the Petitioner left the site earlier, later returning on a motorbike. He was accompanied by another man upon return. They parked the motorbike outside the site. Later, a motor vehicle KAA 663 came to the gate, driven by a third man. The Petitioner approached Kuyanda, and asked him to let the vehicle in. Kuyanda allowed the vehicle in. Once inside, the Petitioner and the vehicle driver loaded 2 big size, and 4 small size conduits, in the vehicle. Kuyanda enquired where the Petitioner was taking the conduits to. He stated that he was taking them to another site, and that the main contractor through Dinesh, was aware. Kuyanda contacted Dinesh, who came to the site and called the Respondent. The Respondent denied that it had given the Petitioner any instructions, to move the conduits. Kuyanda presented his evidence to the investigator.

29. The issues are whether: the Petitioner’s contract was terminated on valid ground (s); he was taken through a fair procedure; the salary paid to him was discriminatory; and whether, he merits the remedies sought.

The Court Finds: - 30. The Petitioner was employed by the Respondent through various annual contracts, beginning September 2015.

31. His last contract was terminated on 13th April 2022, after the Respondent concluded that the Petitioner was guilty of 2 employment offences- allowing unauthorized entry to the construction site by third parties; and attempting to steal conduit pipes from the Respondent company.

32. He was paid terminal dues, calculated at Kshs 19,622. He acknowledged payment, but disputed deduction of Kshs 9,339, which was made on account of 12 days, when the Petitioner was alleged to have been away from work, without the leave of the Respondent. His comments on the acknowledgment form, do not raise any other dispute with the payment made.

33. Was he a site supervisor / foreman? The Petitioner’s position is that he worked for the Respondent for 7 years, 3 years as a technician and 4 years as a site supervisor/ foreman.

34. His earliest contracts, such as the one commencing 1st January 2016, indicate he was employed by the Respondent as a technician. The contract states that the Petitioner’s manager, and/or supervisor, or foreman, would prepare a roster for any shifts and /or weekend duties the Petitioner may be called upon to work.

35. His last contracts, as shown in the contract commencing 1st January 2022, do not expressly state, the position the Petitioner was being employed into. It is merely stated that, the Respondent was happy to offer the Petitioner employment, ‘’ in the service of this company.’’ The Petitioner agreed with this, in his oral evidence, that latter-day contracts, did not specify his role.

36. Being renewal contracts, it can only be presumed that the Petitioner was continuing in his role as a technician. The latter-day contracts retain the clause on the supervision of the Petitioner. They repeat that, ‘’Your manager and/or supervisor, or foreman, will prepare a roster.’’

37. It is not conceivable that the Petitioner was a site supervisor / foreman, while his contracts subjected him to the supervision of another site supervisor / foreman.

38. The Petitioner has not shown that he was a technician for 3 years, and site supervisor/ foreman for 4 years. There is no contract supporting his position. There is no letter showing his promotion, his crossover, from supervisee to supervisor. The last series of contracts, while not indicating that he was still a technician, indicate he was subject to the supervision of the site manager, site supervisor or site foreman.

39. The evidence by the Respondent’s witnesses, that the Petitioner allowed some un-authorized persons to the construction site at Muthithi, would suggest to the Court, that the Petitioner had been conferred upon certain responsibilities by the Respondent, over and above merely those of a technician. But these added responsibilities were nebulous, and cannot be interpreted as supervisory. The Petitioner would not be asking the security personnel at the gate to let in vehicles, and the security personnel would not promptly obey, if the Petitioner was without some appearance of authority. Kuyanda would not be taking instructions from every other electrical technician at the construction site, to open the gate and let in suspicious characters. However, this presumption on its own, does not enable the Court to agree with the Petitioner, that he was a supervisor/ foreman, entitled to be remunerated as such. His contract, to the last one, indicated that he was subordinate to some supervisor/foreman.

40. Consequently, comparing his monthly salary to those of site supervisors / foremen, is misplaced. Those others were not his comparators. The evidence of Maduresi, cannot override what is established by the Petitioner’s contract. Maduresi and other site supervisors / foremen, did not in any event, place their respective contracts of employment, before the Court, to enable the Court scrutinize them, and have a full picture of their responsibilities, terms and conditions of employment, in comparison to the Petitioner’s contracts. A pay slip is not conclusive evidence of the full terms and conditions of employment, in assessing if there was salary disparity and violation of the constitutional principle of equal pay, for work of equal value. The Petitioner did not establish that he was himself, a supervisor/ foreman. Maduresi and his colleagues who have vouched for the Petitioner, cannot displace the contents of the contracts executed between the Petitioner and the Respondent.

41. The claim for salary discrimination has no foundation and is declined.

42. Was he underpaid? He claims underpayment of salary, based on a period of 80 months. This would represent the entire period worked, from 2015 to 2022. But he adopts the Regulation of Wages (General) (Amendment) Order, 2018 (paragraph 49 of the Petition), arguing that the minimum salary for electrical, artisan grade 1, was Kshs 30,627. He was paid Kshs 16,078 monthly, and claims Kshs 14,549 over the period of service, to bring his monthly salary to Kshs 30,627.

43. The same argument and mode of computation is adopted with regard to house allowance, claimed based on 15% of the minimum salary scale.

44. The Court is not able to accept this argument, and the figures computed by the Petitioner. He was employed in 2015. Different Wage Orders would apply over his years of service. Wage Orders are not static. There is no explanation why the Wage Order of 2018, is applied by the Petitioner, across the full spectrum of his service years, of approximately 80 months.

45. A claim for underpayment of salary must be specific to the relevant Wage Order. If there was underpayment between 2015 to 2022, the Petitioner ought to have cited the different applicable Wage Orders, for each year. It is not helpful for an Employee, claiming underpayment of salary to select one Wage Order, and apply it wholesale. It is not the duty of the Court to establish underpayments due, by going into applicable Wage Orders over the period of service, and comparing the minimum payable with what was paid. The Employee must discharge his duty in pleading, documentation and evidence.

46. The salary paid over the period of service, was indicated to be gross. The contracts state that in addition to the basic salary, the Petitioner would be paid an element intended to provide himself with basic housing.

47. At no time before petitioning the Court, did the Petitioner complain that he was being underpaid basic salary or housing allowance.

48. Was termination unfair? The Petitioner exhibited some WhatsApp messages he exchanged with Chirag, surrounding his separation from the Respondent, where he suggests that he had made the decision himself, to ‘’ move on without radiant power.’’

49. He complained that he had been stopped from working by Chirag for 2 weeks. This, according to the Respondent was not a dismissal decision but a suspension. On 29th March 2022, the Petitioner was invited for disciplinary hearing. He was reluctant to attend the hearing, as shown in his WhatsApp message of 25th March 2022 to Chirag.

50. He alleged that Chirag had permanently stopped him from working, and that because of this, he would not subject himself to the disciplinary hearing.

51. He nonetheless had a change of heart and attended the hearing. Charges were presented to him. He defended himself and was allowed to call a witness. A decision was made to dismiss him.

52. The Court is persuaded by the affidavits of the Respondent’s witnesses, particularly those of the officers from Akshar Team Security, that the Petitioner was dismissed on valid ground. Security Guard Stephen Kuyanda captured the Petitioner live, in the act of spiriting away the Respondent’s conduits from the construction site. There was no reason suggested by the Petitioner to the Court, throughout his affidavits, why the Security Guard would pick him out, and concoct a cock and bull story, placing the Petitioner at the centre of the attempted theft of the Respondent’s construction material. The evidence by Kuyanda was adequately corroborated by that of Akshar Team Security Investigator, Elijah Obuya. The Respondent’s witnesses, were not shown to have any axes to grind with the Petitioner.

53. The Respondent had valid reason under Section 43 of the Employment Act, to terminate the Petitioner’s contract.

54. The Petitioner as shown in his WhatsApp messages, was ready to move on. He should have moved on as intended. He took that decision after he considered he could no longer work with the Respondent. While receiving his terminal dues, he acknowledged that he did not have further claims against the Respondent, save for the sum of Kshs 9,339 which he felt was unfairly deducted from his dues.

55. The Court agrees with him, that the sum should not have been deducted, over the period he was suspended by Chirag. The WhatsApp communication between the parties, shows that the Petitioner was not absent from the workplace without the leave of the Respondent, or without lawful cause. He had been suspended pending the outcome of the disciplinary process.

56. The Respondent shall pay to the Petitioner the sum of Kshs 9,339 deducted from his terminal dues.

57. The Court is not able to find any violation by the Respondent, of the Petitioner’s constitutional right to equality, freedom from discrimination and right to fair labour practices. The Petitioner was simply captured live, in the act of committing an employment offence, and suffered loss of employment as a consequence of his indiscretion. There was no constitutional moment in his dispute with the Respondent. The prayer for compensation, for constitutional violations is unmerited. The parties executed annual contracts of employment, and the Respondent acted in accordance with those contracts, and the Employment Act.

It Is Ordered: -a.The Respondent shall pay to the Petitioner the sum of Kshs 9,339 in full and final settlement of this Petition.b.No order on the costs.c.Interest allowed at court rate, from the date of Judgment, till payment is made in full.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER PRACTICE DIRECTION 6(2), OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 27TH DAY OF OCTOBER 2023. JAMES RIKAJUDGE