[2013] KEELRC 793 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO. 2002 OF 2012

PATRICK WAMBUA MULELA ……………………….………..CLAIMANT

VERSUS

ATHI RIVER STEEL PLANT LIMITED …………………. RESPONDENT

JUDGEMENT

This claim is dated 3rd October 2012 where the claimant, Patrick Wambua Mulela is claiming that he was unfairly terminated or dismissed and not paid his terminal dues by the respondent Athi River Steel Plant Limited. The respondent filed their response on 19th December 2012 admit that they claimant was their employee by deny the claims as set out by the claimant in their entirety. The claimant gave his sworn evidence and the respondent called Christopher Wagul the Human Resource Officer. At the close of hearing both parties filed their written submissions on 26th August 2013 and 5th September 2013 for the claimant and respondent respectively.

In the claim the claimant states that he was employed by the respondent in March 2009 as a Mason until 5th October 2011 when the management of the respondent called for a meeting where one director issued a directive to the effect that all employees should provide a written record of the work which they had carried out from January 2011. That the claimant had not kept such a record as he relied on instructions from his immediate supervisor and such a record was with management and this demand from him was contrary to the law and unreasonable and unfair in the circumstances. He tried to ask the HR for guidance as to what was required of him but did not bear fruit and unable to produce such a record he was ordered to return company property in his possession and was ordered out of respondent premises. That this amounted to summary dismissal.

The claimant further stated that no notice was given to him or a chance to be heard before the summary dismissal. This was inhumane, unfair and breached the requirements of the employment Act. The respondent further failed to pay him any terminal dues for notice, leave due, service and compensation all amounting to Kshs.225, 018. 00 which he now claims.

In evidence the claimant stated that when he was employed by the respondent in March 2009 in their construction work he was paid Kshs.463. 00 per day which was paid weekly but he was terminated on 5th October 2011. That the respondent director called a meeting and demanded that they all keep a target. That previously before he was employed, these work targets had been set but he was not present to give his consent to the targets. The targets had been set in January 2009 and he was employed in March 2009.

The claimant further stated that on 5th October 2006, two people were selected to represent the employees and that he was told to go and wait for the respondent to call him but they never did. On 6th October 2011 he returned his overall and helmet since he had been told there was no work. That the issue of targets was meant for the supervisor and not him and that when the respondent asked for a report, he could do this as he never kept any records.

The claimant also stated that before his termination, he was never given notice and had never gone on leave and should be paid Khs.7, 000. 00. That he was never given a chance to defend himself before the termination nor was he given a reason for it. He was a member of NSSF and does not wish to pursue the claim for service pay.

On cross-examination, the claimant confirmed that when he was employed he found established target that each mason had to meet and continued to work without any objections even though no mason could meet them. When they were summoned by the respondent on 5th October 2011 the director said that those who were unable to meet their targets should not report to work but he could not recall the exact words used in this regard or the name of the person who said these words. That he understood these words to mean that if he could not meet his targets, there would be no more work. On 6th October he decided to return the property of the respondent. That he never went to the Labour Office as he had a representative. That he was last at the respondent premises on 6ht October when he returned his overall and helmet and had never gone back.

In defence, the respondent states that s a company engaged in construction work, when they employed the claimant, he was assigned duties of stone laying, tiles fitting, plastering and column setting and was sorely in charge of keeping his individual records of work done and having the same approved on a daily basis this being a vital record for assessing his work performance and establishing if he was meeting the set targets. In January 2009, the respondent held a meeting with the claimant and his colleagues and mutually agreed that a mason with two helpers within ten hours would reach the target of;

200 ft for foundation

A50 ft – course at ground level

80 ft above chase level.

In January 2011 the respondent with a view of improving its operations held a meeting with the claimant and his colleagues who agreed to have the targets reviewed as;

300 ft for foundation

150 ft –course at ground level

80 ft above chase level

At this last meeting, the claimant did not express any disagreement on the review. However 9 months later on 5th October 2011 the respondent summoned the claimant and his colleagues with a view to establish why the set targets had not been met and how this could be achieved as their performance was below target hence affecting the respondent’s operations. On 6th October 2011, the claimant did not report on duty, he went to the Labour office in Athi River and alleged to have been terminated causing the labour officer to visit the respondent and a meeting was held and present was a representative of the claimant and his colleagues and all parties agreed on a new schedule. The claimant never reported back to work.

The respondent therefore states that they never terminated or dismissed the claimant. He is not owed any dues from them as these were paid and the respondent complied with all other statutory requirements with regard to the claimant’s employment with them. That this claim should therefore be dismissed with costs.

In evidence Christopher Wangul supported the defence and as the Human Resource Officer stated that he was conversant with this case. In January 2009 the directors of the respondent set construction targets which were to be met by the masons. He was briefed and was to ensure compliance. In January 2011 there were new targets and when the claimant was employed he accepted the terms and conditions as set by the respondent. On 5th October 2011 the respondents called a meeting over the work targets that were not being met and wanted to know the reasons. This meeting was for the masons and supervisors who were told to justify why the targets were not being met. The supervisors were told to take records that would enable the respondent to review but the claimant and his colleagues were not happy and they left.

On 6th October 2011, the Labour Officer Athi River called the respondent and informed them that their employees were at their offices claiming that they had been fired. That the practice of the respondent in cases of termination of employment is to make a written notice and in this case nobody had been terminated. On 16th October the Labour officer visited the respondent premises and a meeting was held with 2 representatives of the employees, Mr. Musembi and Kingoo. At the end of the meeting, it was agreed that work targets be reviewed where each mason was to have;

200 ft for foundation

150 ft –course at ground level

100 ft above chase level

The labour officer therefore directed the workers to resume work on these agreed upon targets and others resumed but the claimant never reported back.

From the pleadings and the evidence of the parties and the written submissions of both parties, I take it on the 5th October 2011, the respondent called for a meeting of their employees after complaints regarding the work targets each employee or masons was supposed to meet daily. These work targets were hard to achieve and the employees or masons though aware of the reviews done with regard to these targets, they were not comfortable with what was expected of them on a daily basis. At the meeting,

It appears from the meeting there was no agreement and the respondent insisted that each mason had to still meet these targets and the masons not satisfied with these insistence, left their places of work and proceeded to the Labour Office, Athi River where the respondent is situate. But the claimant, being one of the masons and an employee of the respondent did not go to the Labour Office. He stated in evidence that;

… I was told there was no more work for me. I was verbally terminated. I cannot remember the persons who said these words but I understood that if I could not meet the targets, then I was terminated … I never went back to work. On 6th October 2011, this was my last day to ever step at the respondent premises. I returned my overall and helmet.

Who then terminated the claimant from his employment?

Under the provisions of section 35 of the Employment Act, any party to an employment relationship can terminate their contract of employment, whether oral or written by giving the other party notice as agreed between themselves and where that is not agreed, where the salary is paid periodically, for a period not less than 28 days. This notice must be in writing as from this notice other rights and processes flow especially the payment of terminal dues.

In an employment relationship, an employee is required to undertake work as allocated by the employer and the employee is required to undertake this responsibility in good faith. The employer must ensure the employee is working under a conducive environment and allocated work that he is reasonably able to undertake. If such an employee is overwhelmed, a review and reasonable changes can be made in a situation where both the employer and the employee are able to seat or meet to agree and where there is a dispute as to what is reasonable amount of work, a labour officer can be called upon to make an assessment. This what the labour officer, Athi River did on 16th October 2011 by reviewing the work targets that were agreed upon by both the employees and the respondent and the employees agreed to go back to work. But the claimant had already left and returned his work tool.

In this case, the complaint by the claimant and his colleagues that the work target required by the respondent seem to have been unreasonable and the claimant was justified to raise the issue as they deed on 5th October 2011. However there was no agreement. The claimants colleagues went to the Labour Officer, but the claimant did not, on the basis that he understood the respondent to mean that he had been terminated. He did not go to the labour office to seek their intervention as his colleagues did. Even if his colleagues went to the labour office as the claimants’ representative, he did not wait for their feedback. He opted to return his work tools to the respondent as he understood it, he had already been terminated. There was no other employee who understood the situation as he did otherwise the claimant should have called for evidence to this effect.

The claimant was wrong. A work environment requires dialogue. Employees and employer give each other notice. The claimant cannot recall who verbally terminated him nor can he recall the exact words used to him indicating that he had been terminated. There were several employees involved. Others went to the labour office while the claimant, aside or alone, understood that he had been terminated. I find this most unfortunate as by the claimant misunderstanding the words of the respondent ended up not returning to work or engaging in a meaningful dialogue. He failed as an employee and this cannot be visited upon the respondent to be made to pay an employee who in his interpretation of a situation did that which was detrimental to their own employment. He left work without notice which amounted to absconding duty.

In conclusion therefore, I will dismiss the claim herein. No orders as to costs.

Delivered in open court this 30th day of September 2013.

M. Mbaru

Judge

In the presence of

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