[2014] KEIC 3 (KLR)

Ratemo v Kenya Film Commision & another (Cause 2192 of 2012) [2014] KEIC 3 (KLR) (3 February 2014) (Ruling)

Dennis Nyagaka Ratemo v KenyaFilm Commision & another [2014] eKLR

Neutral citation: [2014] KEIC 3 (KLR)

Republic of Kenya

In the Industrial Court at Nairobi

Cause 2192 of 2012

J Rika, J

February 3, 2014

Between

Dennis Nyagaka Ratemo

Claimant

and

Kenya Film Commision

1st Respondent

Peter Mutie

2nd Respondent

Disciplinary proceedings of an employee are internal to an organization and will not be unduly stifled by the court.

Reported by Marietta Gachegu

Labour Law - Employment Law - disciplinary process - discipline of an employee - injunctive relief as a bar to conducting internal disciplinary process - whether the Court could temporarily prohibit the Respondent from carrying out disciplinary proceedings. Labour Law - Employment Law - disciplinary process - discipline of an employee - right of employee to have legal representation during disciplinary proceedings - whether the claimant had the right to have legal representation during the disciplinary process.

Brief facts

The Claimant was suspended by the Respondents as an employee and disciplinary proceedings instituted against him. He was suspected of having leaked confidential information of the organization that was serious enough to amount to a crime. The Claimant applied to the Court to have the disciplinary process and the police involvement in the matter stopped. The Claimant was invited to a disciplinary hearing, but he declined to participate in the deliberations of the Disciplinary Committee stating that he should have been allowed to have his Lawyer represent him at the hearing.

Issues

i. Whether the Court could grant the Claimant an injunctive relief as a bar against the employer from conducting internal disciplinary process. ii. Whether an employee had the right to have legal representation during a disciplinary process.

Held 1. Employment Law is designed to protect the weaker of the two parties in an employment relationship but the prerogative of the employer in managing its business and administration of its staff, should not be unduly stifled by judicial intervention through issue of provisional injunctive measures, such as those sought by the Claimant.2. The disciplinary meeting was convened in line with the Respondent’s Human Resource Policies and Procedures Manual. The Claimant refused to submit himself to that process and instead came to Court seeking protection. The application by the Claimant to have the disciplinary process and the police involvement in the case was not proper, given that the Respondent acted on the basis that there was reasonable suspicion to call on the Claimant to explain himself.3. Disciplinary proceedings are internal to the organization. The Respondent’s Human Resources Policies and Procedures Manual did not allow or bar, legal representation of an employee in a disciplinary hearing. The law provided that a co-employee of the accused employee, or his shop floor Trade Union Representative, were permitted to be present at the forum where the accused employee was heard. Their role during the proceedings was left up to the employer and the employee to determine.4. A Lawyer, in certain circumstances should be allowed to represent an accused employee during disciplinary proceedings where the complexity of the case warranted it. There was no significant prejudice which would be occasioned to the employers in allowing legal representation.5. Legal representation had the effect of improving the overall fairness in the termination procedure, encouraged voluntary settlement, minimized the number of disputes escalated top to the Industrial Court and strengthened the employer’s position in demonstrating the fairness of procedure whenever called to do so. The Respondent was at liberty to proceed with the disciplinary process, to which the claimant was to submit himself with legal representation if he so desired.

Application dismissed.

Citations

East Africa 1. Gitile, J Naituli v University Council, Multimedia University of Kenya Cause Number 1200 of 2012 - (Followed) Statutes East Africa 2. Employment Act, 2007 (Act No 11 of 2007) section 41- (Interpreted) 3. Industrial Court Act, 2011 - In general - (Interpreted)

Ruling

1. The Claimant filed an Application dated 31st October 2012 against his former Employer, a State Corporation, and its Chief Executive Officer named as the 2nd Respondent. The Application seeks the following prayers-:a.The Application be heard ex parte in the first instance for the reason of its urgency;b.An interim injunction do issue against the Respondents, their servants and agents, prohibiting them from carrying out any disciplinary proceedings against the Claimant pending hearing and determination of the suit;c.The Claimant be reinstated as the 1st Respondent’s Head of Finance pending hearing and determination of the suit;d.The Claimant’s full salary and benefits be restored forthwith pending hearing and determination of the Claim;e.All papers and data relating to, or forming the basis of the 1st Respondent’s disciplinary action be released to the Claimant forthwith.

2. The substantive prayers contained in the Statement of Claim of the same date are as follows-:a.An order prohibiting the Respondents jointly and severally from proceeding with any disciplinary action against the Claimant pending the hearing and determination of these proceedings;b.An order lifting the suspension of the Claimant and his immediate reinstatement, as the 1st Respondent’s Head of Finance;c.An order for full salary and benefits accruing or that would have accrued during the period of suspension;d.An order for an independent forensic analysis on the 1st Respondent’s server to investigate whether the email leaking the said corporate information was leaked by the Claimant as alleged;e.The cost of independent forensic analysis above, be met by the 1st Respondent in any event;f.A declaratory order that there is no evidence against the Claimant in the release or leak of the alleged leaked information;g.An award of compensation for the infringement of the Claimant’s constitutional right to fair labour practices;h.An award of damages for infringement of the Claimant’s constitutional right to fair labour practices;i.An award of compensation for the financial loss occasioned by the suspension; andj.Any other appropriate relief as the Court may deem fit to grant.

3. The Respondents filed 2 Replying Affidavits objecting to the Application. The first Affidavit was sworn by the 2nd Respondent Peter Mutie on 8th November 2012, and the second sworn by Sarah Kiranga the 1st Respondent’s ICT Officer on the 6th December 2012. The Respondent’s position is that the Claimant was suspended in accordance with the law and his contract of employment. The Claimant had the full responsibility of the computer he was assigned to.

4. On 23rdNovember 2012 the Court ordered that the 1st Respondent pays the Claimant half of the basic salary every month from the date of the suspension, pending further orders of the Court. On 23rd January 2013, the Court was asked by the Respondents to review this order on payment of half of the basic salary. The Respondents brought it to the attention of the Court that the 1st Respondent’s Human Resource Policies and Procedures Manual did not allow an Employee under suspension to receive half basic pay. The Claimant on the same date asked the Court to uphold the order on payment, and also prayed the Court to order that he is not arrested by the police or prosecuted on account of the allegations made against him by the Respondents, allegations which led to the suspension at the workplace. The Court gave a ruling on 8th February 2013 rescinding the order for payment of half of the Claimant’s basic salary; and declining to interfere with the criminal investigation or prosecution of the Claimant. It was also ordered that the Parties file and exchange written submission in canvassing the Application dated 31st October 2012, and the substantive ruling would be made on notice.Upon evaluation of the pleadings, affidavits, and submissions made by the Parties, the Court

Finds and orders-: 5. This Court ruled in the Industrial Court Cause Number 1200 of 2012 between Prcfessor Gitile J Naituli v University Council, Multimedia University of Kenya [unreported], that the prerogative of the employer in managing its business and administration of its staff, should not be unduly stifled by judicial intervention through issue of provisional injunctive measures, such those sought by the Claimant. The Employment Act and the Industrial Court Act seek to protect the weaker of the two parties in an employment relationship, not to deprive the employer of the management prerogative altogether.

6. The Claimant was suspected of being involved in an employment offence, suspended, investigated and called to a disciplinary hearing. There was a suggestion the employment offence was deemed grave enough to amount to a criminal offence. The Claimant applied to this Court to have the disciplinary process and the police involvement, stopped.

7. This is not proper, given that the Respondent acted on the basis that there was reasonable suspicion to call on the Claimant to explain himself. He was called to a disciplinary meeting, in accordance with the Respondent’s Human Resource Policies and Procedures Manual. He refused to submit himself to that process and came to Court seeking protection.

8. The Court considers that even if the Respondent was to proceed on the basis of a flawed disciplinary process, the Claimant can have restoration after a full Court hearing by grant of reinstatement, re-engagement to a position of equal value, with back salaries to the date of the suspension, and without loss of benefits, status and privileges. The Respondent if the orders are granted, would be deprived of the right to administer the contract of employment, and have the right to manage its business severely infringed by the Court on the basis ofprima facie facts. This is the reason why this Court has consistently declined to issue provisional measures that have the effect of prejudging the propriety of the employer’s disciplinary process and decision.

9. The Claimant was invited to a disciplinary hearing, which he attended on 12th October 2012, but refused to participate in the deliberations of the Disciplinary Committee mainly on the ground that he should have been allowed to have his Lawyer represent him at the hearing.

10. The Respondent’s Human Resources Policies and Procedures Manual do not allow or bar, as far as the Court has been able to read them, legal representation of an employee in a disciplinary hearing. The Employment Act under section 41 suggests only a Co­employee of the accused employee, or his shop floor Trade Union Representative, may be present at the forum where the accused employee is heard. These two persons are not stated to be present to represent the accused employee; they maybe there as passive witnesses to the termination process or as active representatives. It is left to the employer and the employee to determine what role the two persons play. Disciplinary proceedings are viewed as internal and labour relations exercises, which must be shielded from the incendiary effects of Lawyers. The less the lawyers are involved, the more likely it is presumed, that the employment dispute will be resolved without escalating into a full blown legal dispute.

11. The Court doesnot see why a Lawyer in certain circumstances, should not be allowed to actively represent an accused employee at the workplace. There are complex matters that may be raised, such as the matter raised by the Claimant on the information he is said to have leaked to outsiders from his computer, which would require legal representation at the disciplinary proceedings. Employers ought to consider allowing Lawyers to participate in disciplinary proceedings depending on the complexity of the case. There is no significance prejudice which would be occasioned to the employers, in allowing legal representation. Such legal representation may have the effect of improving the overall fairness in the termination procedure; encourage voluntary settlement; minimize the number of disputes escalated to the Industrial Court; and strengthen the employer’s position in demonstrating the fairness of procedure whenever called upon to do so. Furthermore, the workplaces are changing. Complex legal issues in Human Resource Management call for a mind shift. The Respondent’s Human Resources Policies and Procedures Manual on Discipline for instance, reads almost like the Employment Act 2007 on termination and dismissal, and there would be considerable value addition in the disciplinary proceedings, by having an accused employee’s Lawyer participate. The Court is aware that there has been delay in determination of this application owing to the shifting of the Court to Milimani Court and the attendant staff movement. It is an unavoidable delay, for which the Court apologizes. The facts on the ground may have altered. For purposes of disposing of this application, the Court Orders-:[a]The Application dated 31st October 2012 is rejected;[b]The Respondent is at liberty to proceed with the disciplinary process;[c]The Claimant shall submit himself to the Disciplinary Process, and shall be allowed the legal representation of his Lawyers at the Disciplinary Hearing; and[d]No order on the costs.

DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF FEBRUARY 2014JAMES RIKAJUDGE