[2022] KEELRC 331 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NUMBER E405 OF 2020

BETWEEN

PETER KIMANI MBURU..............................................................................................CLAIMANT

VERSUS

PABARI INVESTMENTS LIMITED........................................................................RESPONDENT

Rika J

Court Assistant: Emmanuel Kiprono

___________________________

P. Sang & Company Advocates for the Claimant

Llyod & Partners, Advocates for the Respondent

_____________________________________

JUDGMENT

1. The Claimant filed his Statement of Claim on 19th September 2020.

2. He avers, he was employed by the Respondent between 30th April 2015 and 29th May 2020.

3. His salary all through was Kshs. 251,104 monthly.

4. He served probation of 6 months, but did not receive a letter confirming him in employment.

5. He was transferred to a sister company of the Respondent, Kwale International Sugar Company Limited [KISCOL] effective 23rd January 2018. His terms of employment remained the same.

6. There was constant misunderstanding between him and a colleague at Kwale, leading to the feeling by the Claimant that he was being harassed and undermined. He communicated this misunderstanding to the Respondent. No action was taken by the Respondent.

7. There was reorganization at the company. The Claimant was made head of administration and fleet monitoring in the agricultural department.

8. On 2nd November 2018, he received a letter from the Respondent seconding him to KISCOL for 2 years, despite having worked there from May 2018.

9. He sought clarification about secondment. On 21st February 2020, he received a letter terminating secondment to KISCOL. His department of administration and fleet monitoring was abolished. He was to return to the Respondent, Pabari Investments Limited, in Nairobi, by 29th February 2020.

10. He felt the notice was too short, and wrote to the Respondent seeking extension to 9th April 2020. He did not receive a written response. He was told by the Senior Human Resource Officer Mr. Michael Mechumo that KISCOL was no longer his Employer, from the date of release, and that he should address his concerns to Pabari.

11. He continued reporting at Kwale, awaiting response.

12. He travelled to Pabari in Nairobi, on 7th April 2020. On 14th April 2020, he was advised to self-quarantine for 2 weeks under Covid-19 health guidelines. On 27th April 2020, he received a letter to show cause why disciplinary action should not be taken against him for failure to report to Pabari, from 2nd March 2020, after release from Kwale.

13. He responded explaining the circumstances which prevented him from reporting to Pabari. He was invited for disciplinary hearing on 11th May 2020. He was heard and summarily dismissed through a letter dated 29th May 2020.

14. He avers, termination was unfair, unlawful and actuated by malice.

15. He prays for: -

a. Service pay for 5 years at Kshs. 627,760.

b. Equivalent of 12 months’ salary in compensation for unfair termination at Kshs.3, 025,248.

c. Salaries for April and May 2020 at Kshs. 504,208.

d. Transport of household goods from Kwale to Mombasa at Kshs. 7,500.

e. Transport of household goods from Mombasa to Nairobi at Kshs. 35,000.

f. Fare [private vehicle] from Mombasa to Nairobi at Kshs. 7,500.

Total… Kshs. 4,207,216.

g. Declaration that the Claimant was deemed confirmed in permanent service after 6 months of probation.

h. Declaration that termination was unfair.

i. Costs.

j. Interest from the date of termination at court rates.

k. Certificate of Service to issue.

16. The Respondent filed its Statement of Response on 19th October 2020. It is not disputed that the Claimant was employed by the Respondent as pleaded in the Claim. He was transferred to KISCOL with effect from 23rd January 2018, without change of terms. He challenged transfer, and did not report to Kwale until May 2018.

17. On 2nd November 2018, it was decided that he is seconded, rather than transferred to KISCOL, for a period of 2 years. Secondment was subject to periodic review.

18. Secondment was terminated through a letter from the Respondent to the Claimant, dated 19th February 2020. He was instructed to report to Nairobi Office [Pabari] on 1st March 2020. He received the latter on 21st February 2020, and had more than a week, to report to Pabari.

19. Termination of secondment followed a reorganization exercise, whereof the Claimant’s role at KISCOL was abolished. He asked for discussions with Management and was heard by the General Manager, and Senior Human Resource and Administration Manager, and advised that termination of secondment was final.

20. He ceased reporting at KISCOL on 29th February 2020. He did not report at Pabari on 2nd March 2020 as instructed. He was therefore taken through disciplinary hearing, and dismissed on 29th May 2020.

21. He had a poor disciplinary record. He resisted the reverse transfer from Nairobi to Kwale, reporting at Kwale some 3 months late; he did not report to work on Saturdays while in Kwale contrary to instructions; he was issued notice to show cause on 29th January 2019 for absenteeism; and on 16th August 2019, received another notice to show cause, for incompetence.

22. His last act of defiance, was in failing to report to Pabari at Nairobi, and was an act of gross misconduct, warranting summary dismissal. The Respondent prays for dismissal of the Claim with costs.

23. The Claimant gave evidence on 23rd July 2021, and 21st October 2021 when he rested his case. Respondent’s Head of Human Resources James Oduor Otieno, and Senior Human Resource and Administration Manager Michael Mechumo, gave evidence for the Respondent on 21st October 2021, closing the hearing. The Claim was last mentioned on 15th December 2021, when Parties confirmed filing and exchange of their Submissions.

24. The Claimant adopted his 2 witness statements on record, original bundle of documents exhibited as number 1 to 16, and supplementary bundle containing 1 document, exhibit 17.

25. He faulted the panel which oversaw his disciplinary hearing. He stated that they were his juniors. He wished to call 2 witnesses, who were not available due to Covid-19 travel restrictions. His objection on these grounds was not recorded in the disciplinary minutes.

26. It was alleged that he deliberately failed to follow instructions and that he was infecting staff with Covid-19. He was not facilitated to relocate to Nairobi. Pabari was the holding company for KISCOL. The Claimant asked for facilitation. He was advised he would be facilitated, but was not.

27. He was not requested to sign daily attendance register on any occasion. He cleared probation but was not issued confirmation letter.

28. Under cross-examination, the Claimant told the Court that he received letter terminating his secondment on 19th February 2020. He was instructed to report to Nairobi on 1st March 2020. The instructions letter was signed by the CEO. The Claimant acknowledged the CEO’s authority. CEO was his senior. He was given 10 days to report to Pabari in Nairobi. He did not report.

29. He requested for extension to 15th April 2020. He did another e-mail saying he would report to Nairobi on 18th May 2020. This was a request. He was reporting to Director of Projects at Kwale. The Director advised him, in issue was a human resource matter. There was no letter instructing the Claimant to stay at Kwale.

30. He finally reported at Nairobi on 14th April 2020. He was not on leave between 2nd March 2020 and 14th April 2020. He had not applied for compassionate leave. Mombasa, Kilifi and Kwale counties were under public health lockdown. When he travelled, there was no lockdown.

31. He was issued notice to show cause, while in quarantine. He responded and was invited for disciplinary hearing. He was told that he could call witnesses. Hearing took place in his presence. He did not say at the hearing that he wished to call 2 witnesses. He only said this in his reply to the notice to show cause. He did not know that the disciplinary committee was a standing committee. He asked the Human Resource Manager to recuse himself. The Human Resource Manager had been involved in the dispute prior to hearing. The minutes were highly edited. The Human Resource Manager chaired the disciplinary hearing committee forcefully. Even junior officers were in the committee. The legal officer was in attendance. He was junior to the Claimant. The Claimant denied that he sought to cherry pick members of the disciplinary committee.

32. There was no written agreement on relocation costs, just as there was no written agreement at the time the Claimant moved from Nairobi to Kwale. The contract did not provide for relocation costs. He did not resist transfer from Nairobi to Kwale. He had a patient who later died. The Claimant was transferred in January 2018, but reported in May 2018.

33. He told the Court that he was never issued notice to show cause for failing to report for duty on Saturdays. He acknowledged that he received such notice, in 2019. He replied and the matter ended there. He had no recollection of another notice, issued on 16th August 2019 for incompetence. He told the Court that he replied in detail. He was issued warning letter dated 27th August 2019. It is not true that he signed the letter. He was a frustrated, not a difficult Employee.

34. Redirected, the Claimant told the Court that he was promised his issues on relocation would be considered. He was not required to sign daily attendance register. He objected to the composition of the disciplinary committee. He wished to call 2 witnesses who were not available due to travel restrictions. These objections were omitted from the minutes. He did not have other disciplinary issues.

35. James Oduor Otieno has been Respondent’s Human Resource Manager from 1st July 2018. He adopted his witness statement and documents filed on behalf of the Respondent, as Respondent’s evidence. The documents are exhibited number 1-26.

36. The Claimant’s contact was terminated for absenteeism and disobedience of lawful instructions. These were valid reasons.

37. Otieno told the Court that the Claimant was issued letter to show cause on 11th April 2020. He responded on 27th April 2020. He was issued disciplinary hearing notice dated 5th May 2020, and heard on 12th May 2020. The disciplinary committee is a standing committee of 5 persons. They did not have any personal issues with the Claimant. Otieno chaired. The Claimant did not raise any objection on composition. The Employee does not appoint the committee. It is a standing committee. The Claimant was advised on his right to call witnesses. He did not give the Respondent a list, or seek to call any witness.

38. On cross-examination, Otieno told the Court that 1 week was sufficient for the Claimant to prepare for the hearing. He wrote to the CEO asking for extension of the transfer period, to enable him transfer his children to schools in Nairobi. The CEO declined extension. The email communication declining request is not exhibited. The Claimant wrote a second email seeking extension. It was declined.

39. The Claimant was confirmed after probation, by operation of the law. It is correct that he was not issued a written contract after probation. Every Employee signs the attendance register. The Claimant was advised orally, to sign the register. He did not mention to the disciplinary committee that he wished to call 2 witnesses. Redirected, Otieno told the Court that the Claimant was given written instructions to report to Nairobi. At no time was he instructed to continue staying at Kwale, after the instructions to report to Nairobi issued. He was not at work while sending e-mails to the CEO. Writing e-mails did not justify Claimant’s absenteeism and insubordination.

40. Michael Mechumo is the Respondent’s Senior Human Resource Manager. He adopted his witness statement and documents filed by the Respondent, as Respondent’s evidence.

41. The Claimant was instructed through a letter dated 19th February 2020, to report to Nairobi. The General Manager and Mechumo, held a meeting with the Claimant on 25th February 2020, and emphasized to him to move to Nairobi, and raise any issues he had about transfer, at Nairobi. He was released by Kwale.

42. Cross-examined, Mechumo told the Court that the Claimant was, as a matter of practice, to sign the attendance register daily. He was also required to punch the biometric register. He did neither. He was heard fairly. Mechumo recorded the minutes of the disciplinary hearing. It is correct that the Claimant wrote to the Respondent, seeking extension of the transfer period. Redirected, Mechumo affirmed that the Claimant was not at work, when he wrote the e-mails seeking extension of the transfer period.

43. The issues, as traditionally is with unfair termination disputes, are: whether the Claimant’s termination was substantively fair under Sections 43 and 45 of the Employment Act; whether it was procedurally fair under Sections 41 and 45; and whether the Claimant merits the prayers sought.

The Court Finds: -

44. Pabari Investments Limited is based at Nairobi. It is a sister company to Kwale Sugar International Company Limited, which is based at Kwale.

45. The Claimant was employed by the Respondent on 30th April 2015, initially based at Nairobi. He was seconded to KISCOL on 23rd January 2018, in the position of Head of Administration and Fleet Monitoring. His salary was Kshs. 251,104 monthly.

46. He was instructed in writing by the Respondent, to report to Nairobi, through a letter dated 19th February 2020. He was released by Kwale with effect from 29th February 2020. He was to report to Nairobi at the beginning of March 2020.

47. The Claimant did not report as advised.

48. He wrote to the CEO on 3rd March 2020, asking to be allowed to report on 9th April 2020. He said he needed time to serve out his tenancy agreement, organize transportation of his bags and baggage, and secure school in Nairobi for his children.

49. The request made sense, except that all the Claimant was required to do, was report to Nairobi, rather than fully relocate, by beginning of March 2020.

50. He was given clear instructions to report to Nairobi, and make any requests on logistics of the transfer, from Nairobi.

51. He did not report to Nairobi.

52. He sat away from both Nairobi and Kwale. He did not even ask to go on leave, pending resolution of his transfer concerns.

53. Transfer to Nairobi was necessitated by a reorganization exercise, which entailed abolishment of the Claimant’s role at Kwale.

54. He wrote again on 25th March 2020 to the CEO, asking the reporting date to be moved to 18th May 2020. The first request to report on 15th April 2020 had not been approved. The Claimant had stayed away, and was now asking to report on 18th May 2020, nearly 3 months after he was supposed to have reported to Nairobi.

55. He availed himself at Nairobi on 14th April 2020. The disciplinary process commenced, leading to summary dismissal on 29th May 2020.

56. The Court is convinced that the Claimant was dismissed for clear and valid reasons. The standards of fairness on substantive justification were met. Section 43 of the Employment Act was fully adhered to.

57. Between 29th February 2020 and 29th May 2020, the Claimant did not work for the Respondent. He was not on any form of leave. He did not have permission to be away. He had been instructed in clear language, to report to Nairobi. He was advised any concerns regarding transfer, would be addressed from Nairobi. He did not report and work either at Nairobi or Kwale, for 3 months.

58. The Claimant’s conduct indicated that he had fundamentally breached his obligations arising under his contract, warranting summary dismissal under Section 44 [3] of the Employment Act. Additionally, he was involved in 2 distinctive acts of gross misconduct, falling under Sections 44[4] [a] and [e] of the Employment Act, 2007 [ absenteeism without leave or lawful cause; and insubordination]. Termination was based on valid and clear reasons.

59. The Respondent would be fortified on its justification by antecedence. On the initial transfer from Nairobi to Kwale, the Claimant had embraced an attitude of resistance. He was transferred from Nairobi to Kwale in January 2018. He resisted transfer, reporting 5 months later, in May 2018. He explained unconvincingly that he was taking care of a patient who later died, occasioning the 5 months’ delay. He did not explain if on this occasion, he sought leave of the Respondent to stay in Nairobi. The Respondent would have justification to take action against the Claimant. In 2020, the Claimant would only be viewed as a repeat offender, disregarding the instructions of his superiors, resisting transfer and failing to report for duty without leave or lawful cause.

60. Insubordination was pronounced. The Claimant conceded that instructions came from none other than the CEO. He admitted that the CEO was his superior. In Dede Esi Annie Amanor-Wilks v. Action Aid International [2014] e-KLR, the Court upheld the right of Employers to rid themselves of insubordinate and incompatible Employees. The Claimant repeatedly cast himself in the mould of an insubordinate and incompatible Employee, unwilling to exist harmoniously with his Managers and to fit in the corporate culture of the 2 sister companies who employed him.

61. He made several allegations which appear to the Court irrelevant and diversionary, with respect to the charges of absenteeism and insubordination.

62. These include his allegation that he was never confirmed after probation. The issue is not in dispute and the Respondent never discontinued the Claimant after probation. The Respondent’s witness explained that the Claimant was confirmed through the operation of the law. The Claimant pleaded that there was misunderstanding between him and a colleague at Kwale. He did not elaborate on the nature of this misunderstanding and its relevance to the issue at hand - his refusal to transfer. He pleads that he was issued a letter dated 2nd November 2018, seconding him to KISCOL, while he had been working at the same place, from May 2018. How does this relate to the issues in dispute herein? The Court does not see how these averments are relevant.

63. On procedure, it is recorded that the Claimant was issued a letter to show cause, dated 11th April 2020, signed by Director of Projects H. Kotecha and Human Resource and Administration Manager, James Otieno. The letter specified the charges against the Claimant.

64. He comprehensively replied to the letter to show cause, on 27th April 2020.

65. He was issued a letter of invitation to the disciplinary hearing, dated 5th May 2020. The charges were stated. He was advised on his right to call witnesses, provide documentary evidence, and to make oral or written submissions, before the disciplinary committee.

66. The Claimant was heard on 12th May 2020. The minutes on record indicate fair opportunity was availed to the Claimant to defend himself.

67. The disciplinary committee was a standing committee. It was not open to the Claimant to select who sat in it. The minutes do not show that he objected to any of the committee members’ involvement. The committee comprised the Human Resource and Administration Manager, Group Internal Auditor, Legal Officer and Administrator. The Claimant did not establish that he was heard by his juniors or that his contract barred him from being heard by some officers who ranked below the him, in the organogram. This was a standing committee, representing relevant Management officers. The Claimant has not shown that he was prejudiced through being heard by any officer junior to him, if indeed any of the above officers was junior to the Claimant. The Court accepts that this was a standing committee, with little or no room for its alteration. The committee carried out its work objectively.

68. On 29th May 2020, the Claimant was issued the letter of summary dismissal, and advised on the grounds justifying the decision.

69. The Court is persuaded that termination met the minimum standards of fairness under Sections 41, 43 and 45 of the Employment Act. The Respondent discharged its evidential burden, under Section 47[5] of the Employment Act.

70. On remedies, a declaratory order that the Claimant was deemed to have been confirmed in employment after 6 months of probation, is neither here nor there. The Respondent never indicated anything to the contrary, and treated the Claimant as a regular Employee after probation, raising his salary to Kshs. 251,104. The Court does not think it serves any useful purpose, to grant a declaratory order, on a subject which is not disputed.

71. Termination as concluded above was fair and lawful.

72. There is no evidence from the Claimant’s contract, the law or company policy, to justify service pay of Kshs. 627,760.

73. Termination was fair and lawful, and compensation is not merited.

74. The Claimant was not at work in April and May 2020. He was absent without leave of the Respondent, or lawful cause. He did not render any services. He failed to report for duty as instructed. He fundamentally breached the terms of his employment. Section 19[1] [c] authorises an Employer to deduct from an Employee’s salary, amounts in respect of each day the Employee, without leave or other lawful cause, absents himself from work. The Claimant is not entitled to salary for the period he was away from work, between March and May 2020.

75. The prayers relating to costs of relocation have not been established. The sums claimed are not based on the Claimant’s contract. They are not supported by receipts. The Claimant did not relocate when instructed to do so. If he moved out of Kwale to Nairobi, it must have been at his own pace, while an ex-Employee of the Respondent.

76. Certificate of Service to issue.

77. Costs of the Claim to the Respondent.

IN SUM, IT IS ORDERED: -

a. The Claim, save for the prayer for Certificate of Service, is declined.

b. Costs to the Respondent.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 25TH DAY OF MARCH 2022.

JAMES RIKA

JUDGE