[2018] KEELRC 479 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 2207 OF 2014

PETER NGARI KARIUKI........................................CLAIMANT

v

RIFT VALLEY RAILWAYS (K) LTD..................RESPONDENT

JUDGMENT

1. For determination are the questions

(i) Whether the dismissal of Peter Ngari Kariuki (Claimant) was unfair

(ii) Whether the Claimant was paid wages for November 2014 and

(iii) Appropriate remedies.

2. When this Cause first came up for hearing on 10 May 2018, the hearing aborted because the Respondent’s advocate Mr. Cheluget sought an adjournment on the ground that the advocates on record for the Respondent had attempted to file an application to cease from acting but the registry had declined to accept the application.

3. The Court caused the Deputy Registrar to investigate the allegations and the investigations established the allegations were baseless.

4. The Cause was eventually heard on 18 October 2018 when the Claimant testified and closed his case.

5. The Respondent closed its case without calling any witnesses, or leading evidence on 24 October 2014.

6. The Claimant filed his submissions on 31 October 2018 while the Respondent’s submissions which should have been filed by 17 November 2018 were not on the file by this morning.

7. The Court has considered the pleadings, evidence and submissions on record.

Unfair termination of employment

Procedural fairness

8. Section 35 of the Employment Act, 2007 requires written notice of termination while section 41 of the same Act envisages a hearing.

9. The Claimant was issued with a show cause notice on 23 September 2014 to which he responded on the same day.

10. After the show cause and response, the Claimant appeared before a Disciplinary Committee on 24 September 2014. Minutes of the hearing were filed in Court.

11. The Court is satisfied that the process as conducted by the Respondent met the statutory test as contemplated by sections 35 and 41 of the Employment Act, 2007.

Substantive fairness

12. In terms of sections 43 and 45 of the Employment Act, 2007 an employer is under an obligation not only to prove the reasons for dismissing an employee but that the reasons were valid and fair.

13. The Respondent did not call any witness or lead any evidence to discharge that obligation.

14. However, the Respondent attempted to meet the challenge through cross examination of the Claimant.

15. The charge against the Claimant was negligence and the particulars were

changing the points for the movement of loco 9407 propelling loco 9311 dead towards fuel point, thus allowing the movement but failed to signal the driver of the loco and/or warn him that the fuel point was occupied by loco 9405.

16. It is this charge of negligence which the Respondent was required to prove.

17. Both in examination in chief and during cross examination, the Claimant maintained that the driver of the loco in question had unobstructed view of the fuelling point, and that he could not have prevented the accident.

18. The Court has looked at the minutes filed in Court. The minutes show that the driver of loco 9311 (Francis Oduor) which hit loco 9405 was moving at a high speed of 10-15kph thus failing to have a clear vision of what was ahead of him.

19. The said driver, Francis Oduor had in his defence during his own disciplinary process admitted that he moved before being signalled.

20. In the view of the Court, and in consideration of the admissions by the driver of loco9311, the unrebutted evidence of the Claimant and the failure by the Respondent to lead any evidence, the termination of the Claimant’s employment was unfair as it is the driver who was reckless.

21. The Court has also taken note that the recommendation of the Disciplinary Committee against the Claimant was termination of service and not dismissal, two distinct penalties under the Respondent’s Code of Conduct.

22. It is not clear on whose authority the termination of service was converted into dismissal.

Compensation

23. For the unfair termination, and considering the length of the Claimant’s service of about 9 years, the Court assesses compensation as equivalent to 9 months gross wages (gross wage varied from month to month but the gross wage for September 2014 was Kshs 109,150/-).

Pay in lieu of notice

24. Having found that the dismissal was unfair, the Court finds that the Claimant is entitled to the equivalent of 1 month pay in lieu of notice (basic salary was Kshs 41,076/-).

Salary for November 2014

25. The Claimant was dismissed through letter dated 21 October 2014 and was paid salary up to 25 October 2014.

26. The Claimant would therefore not be entitled to wages for a period after his engagement had been brought to an end.

Leave

27. The Claimant sought the equivalent of 78 accrued leave days which he computed as being Kshs 133,500/-. As the Claimant admitted he was paid for pending leave days, this relief is not available.

Certificate of Service

28. A certificate of service is a statutory entitlement and one was issued to the Claimant. Nothing therefore turns on this head of claim.

Conclusion and Orders

29. The Court finds and holds that the dismissal of the Claimant was unfair and awards him

(i) Compensation Kshs 982,350/-

(ii) Pay in lieu of notice Kshs 41,076/-

TOTAL Kshs 1,023,626/-

30. Claimant to have costs.

Delivered, dated and signed in Nairobi on this 7th day of December 2018.

Radido Stephen

Judge

Appearances

For Claimant Mr. Kirika instructed by D.K. Githinji & Co. Advocates

For Respondent Mr. Cheluget instructed by Ochieng, Onyango, Kibet & Ohaga Advocates

Court Assistant Lindsey