[2018] KEELRC 2482 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 257 OF 2016

(Before Hon. Lady Justice Maureen Onyango)

RICHARD OWORY OLUOCH.............................................................................CLAIMANT

-VERSUS-

THE BOARD OF MANAGEMENT BUTULA BOYS’ HIGH SCHOOL....RESPONDENT

JUDGMENT

The Claimant RICHARD OWORY OLUOCH filed this suit against the Respondent, the Board of Management of Butula Boys High School, his former employer, vide Memorandum of Claim dated 29th August 2016 alleging unfair termination of employment. He prays for the following reliefs-

a) Reinstatement, in the alternative

b) Unpaid salary June 2015 to August 2016. ....... Kshs. 153,022

c) 3 months’ salary in lieu of notice....................... Kshs. 42,429

d) Annual leave unpaid........................................... Kshs. 36,000

e) Salary for the remaining years to be assessed by court.

f) Service/compensation for unfair dismissal to be assessed by court.

g) Costs

h) Interest

i) Any other reliefs the court shall deem fit to grant.

The Respondent filed a Memorandum of Appearance but did not file defence. The Respondent also failed to attend court for the hearing even though the hearing date was taken in court in the presence of both parties. The case was heard on 6th June 2017.

Claimant’s Case

The Claimant’s case as set out in the claim and in his testimony in court is that he was employed by the Respondent as an Artisan on 10th August 2008 and was re-designated as School Storekeeper by letter dated 7th September 2009. The Claimant testified that a new principal was posted to the School in January 2015. The new Principal immediately asked employees to submit their academic certificates. On 27th May 2015 the Claimant was called to the office and served with a letter of suspension dated the same date. He was placed on half salary during the suspension. He was thereafter served with a letter of interdiction dated 1st July 2015. He responded to both letters on 24th July 2015. After that there was no communication from the school. The Claimant wrote to the school on 1st September 2015 seeking a way forward on the interdiction but it was not responded to. By letter dated 9th March 2016 the Respondent invited the Claimant to appear before the Board of Management on 12th March 2016 which he did. At the hearing all that was done was to read to him the charges. He was then informed that he would be invited to appear before the Board again. The Claimant was invited to appear before the Board again on 23rd July 2016 by letter dated 21st July 2015. At the second hearing he was only informed that the Board has power to employ and terminate. He testified that he was not asked to defend himself or say anything at both appearances before the Board. He thereafter received a letter of dismissal dated 23rd July 2015 through the post office.

The Claimant testified that he never received any warning letter during the 9 years that he worked for the Respondent. He testified that the termination of his employment was unfair. The Claimant testified that he was informed by the PTA Chairman that the PTA Chairman was told at a meeting held in Busia to sack the Claimant and the Accounts Clerk.

The Claimant prayed for reinstatement or in the alternative payment of terminal dues as prayed for in the Claim. He also prayed for costs and interest. The Claimant testified that his salary at the time of termination of employment was Kshs. 16,190. He produced a copy of his payslip for the month of May 2014 as proof of the same.

Determination

I have considered the pleadings and evidence of the Claimant. The issues for determination are whether his dismissal was unfair and if he is entitled to the prayers sought.

For termination to be fair an employer must comply with both section 41 and 43 of the Employment Act relating to fair procedure and valid reason for termination.

The charges against the claimant in the suspension and interdiction letters are as follows:

That on diverse dates between 13th January 2014 and 15th December 2014, 229. 4 bags of maze worth Kshs.871,720 and 57. 5 bags of beans worth Kshs.402,500 got lost under mysterious circumstances under his watch. The total loss amounted to Kshs.1,274,220 and as the officer in charge his report explaining the loss was not satisfactory.

Colluding with suppliers to cover up for shortage in number of kilos in goods supplied.

That the Board of Management carried out a review on his office and found him

wanting for corruption, dishonesty and incompetence. That his academic qualifications are not commensurate to the management of such a huge store.

The Claimant’s response to the charges as contained in the response to the letter of suspension which was replaced with the letter of interdiction as stated in the said letter of interdiction are that;

Richard Owory Oluoch

P.O. Box 95

BUTULA

24/7/2015

The Secretary

Board of Management

Butula Boys Secondary School

Private Bag

Butula

Dear Sir

REF: INTERDICTION

I confirm reviving your interdiction letter after suspension letter. I am unaware of the losses dated 13th January to December 2014, how they were noted/calculated.

The suppliers have their delivery notes from the supply. Kindly let the suppliers I colluded with to cover up the number of kilos come and clarify.

For the last 15 years, I have been working in this institution under the supervision of my immediate bosses who are the Bursar and the Principal. I have never been told wen I am on fault, nether have I been corrected by them or told that I am on fault, because I was working under their instruction.

Refer my draft copy dated 10/6/2015

Thank you.

Yours faithfully

Richard Owory Oluoch

Cc CDE – Busia

CSA – Busia

DEO – Butula

The letter inviting the Claimant for hearing did not specify the charges against him. He was further not given an opportunity to be represented or accompanied by either a fellow employee of his choice or a union official.

I find that in the all the circumstances of this case, the Respondent did not act in accordance with justice and equity in dismissing the Claimant. 1st he was suspended then interdicted with no explanation for the same. Secondly he was kept on interdiction and suspension for an inordinately long period, from May 2015 to July 2016, a period of more than one year. Thirdly the letter of interdiction and suspension do not refer to any terms of service applicable to the Claimant authorising either or both suspension and interdiction. Since both are not provided for in the Employment Act they can only be lawful if provided in the Claimant’s terms and conditions of employment. Finally, the hearing was not conducted in the manner prescribed in section 41 of the Act.

From the foregoing I find and hold that the dismissal was unfair.

Remedies

(i) Reinstatement

The Claimant prayed for reinstatement. According to section 49(4) of the Employment Act reinstatement is only available in exceptional circumstances. The Claimant has not proved any exceptional circumstances. Secondly there is likely to be very strained relations should the Claimant be sent to work under the same principal, a situation that would be uncomfortable to both the Claimant and the principal. For these reasons I do not find reinstatement appropriate in the specific circumstances of this case.

The Claimant prayed for the following in the alternative-

(ii) Unpaid Salary from June 2015 to August 2016

Having found the dismissal unfair I order that all salary withheld during suspension and interdiction from June 2015 to July 2016 be refunded to the Claimant. He was not in employment in August 2016 and is not entitled to any pay for August 2016.

(iii) Salary in Lieu of Notice

The Claimant is entitled to notice or pay in lieu. He has however not demonstrated that his terms provided for 3 months’ notice as prayed. I award him one month’s salary in the sum of Kshs. 16,190.

(iv) Annual Leave Unpaid

The Claimant did not adduce any evidence to prove that he did not take annual leave for the entire period he worked for the Respondent. The prayer for leave is dismissed as it was not proved.

(v) Salary for remaining years of service

The Claimant is not entitled to salary for remaining years of service as all employment relationships are subject to termination as provided in the contract or by law. There is no obligation on any employer to keep an employee to the date of retirement just as there is no similar obligation of an employee to work for an employer till retirement. This court has severally held that employment contracts are not intended to unfairly enrich employees and the court will not order anticipatory payments. See the case of Engineer Francis N. Gachuri v Energy Regulatory CommissionandElizabeth Wakanyi Kibe referred to by the Respondent.

(vi) Compensation for Unfair Termination

Having found the dismissal of the Claimant unfair and taking into account the length of his service which was in excess of 8 years, I award him maximum compensation of 12 months’ salary in the sum of Kshs. 194,280.

(vii) Costs and Interest

The Respondent will pay the Claimant’s costs for this suit and decretal sum shall attract interest at court rates from date of judgment.

DATED AND SIGNED ON THIS 4TH DAY OF JANUARY 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED ON THIS 1ST DAY OF FEBRUARY 2018

MATHEWS NDERI NDUMA

JUDGE