[2017] KEELRC 1720 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT AT MOMBASA

CAUSE NUMBER 460 OF 2014

BETWEEN

SAMUEL WANYONYI WAMALWA............................CLAIMANT

VERSUS

WELLS FARGO LIMITED....................................RESPONDENT

Rika J

Court Assistant: Benjamin Kombe

Sherman Nyongesa &Mutubia Advocates for the Claimant

Walker Kontos Advocates for the Respondent

____________________________________

JUDGMENT

1. The Claimant filed his Statement of Claim on 29th September 2014. The Respondent filed its Statement of Response on 24th October 2014. Initial hearing concluded on 8th October 2015, and Award was set to be delivered on 4th December 2015.

2. Unfortunately the file went missing, and the Award could not be prepared or read as was intended. The Parties obtained an order for reconstruction of the file. The order was granted on 20th June 2016, and Parties heard on 11th November 2016. The Claimant testified, as did Respondent’s Human Resources Manager Stanley Mbai. The matter was last mentioned in Court on 9th February 2017 when Parties confirmed the filing of their Closing Submissions and were advised Judgment would be delivered on 28th February 2017.

3. The Court must first explain the circumstances through which the original file went missing. The file, alongside other concluded files was forwarded to the undersigned Judge’s Chambers, for writing of the Award. It was kept in the drawers. It somehow got stuck in between the drawers. It was only recovered by the undersigned Judge on routine search for documents from the drawers, in February 2017. This was after hearing under the skeleton file was completed. The Court has apologized to the Parties, and takes the opportunity to apologize once again, through this Judgment. The misplacement of the original file was unintended, and not attributable to the Parties, or the Court Staff. The 2 files have been placed together for the record.

Claimant’s Case

4. The Claimant states he was employed by the Respondent, on 3rd March 2008 as a Motorcycle Riding Supervisor. He signed a Service Agreement dated 3rd March 2008. He earned Kshs. 27,522 per month. He was informed by the Respondent’s Personnel Manager F.K. Maina on 10th July 2014 that his contract would be terminated effective 1st July 2014, on the ground that the Claimant was not fit to perform his duties. The Claimant had been injured in a road traffic accident, while on duty.

5. He was not given termination notice. He was not heard. There was no medical report to confirm his incapacity. He was not paid terminal dues and compensation. He states the Respondent did not adhere to the provisions of the Employment Act 2007, in terminating his contract. He prays for the following orders against the Respondent:-

a) A declaration that termination was unfair.

b) 3 months’ salary in lieu of notice at Kshs. 82,566.

c) Compensation for unfair termination the equivalent of 12 months’ salary at Kshs. 330,264.

d) Annual leave pay at Kshs. 36,128.

e) Interest on [b] and [c] from 10th July 2014 till payment is made in full.

f) Costs.

6. The Claimant testified the Respondent alleged, in the letter retiring the Claimant on medical ground dated 10th July 2014, that the Claimant failed to produce medical records to show his health status, after failing to report for duty from 5th October 2013 to 30th June 2014.

7. Management Officers of the Respondent, who included the Operations Manager, would visit the Claimant frequently when he was in hospital. They photocopied his medical records while they visited. They knew he was injured while riding Respondent’s Motorcycle, around Nakumatt Mall in Nyali, Mombasa.

8. The Doctor who examined him recommended he is assigned light duty, signing the certificate of incapacity on 20th May 2014. The Respondent had requested for the certificate. The Respondent however asked the Claimant to wait for an assessment report. He did not know who was to carry out the assessment. While he waited, he was given the letter of termination. The letter is dated 10th July 2014, with the effective date given as 1st July 2014. No assessment was ever carried out. The Claimant told the Court he has not been able to find alternative employment.

9. He told the Court on cross-examination that the Respondent did not care about his work injury. He had a disk implant. He did not know if the Respondent purchased the screws for the disk. He was paid his salary while in recuperation. This was for about 7 months. His concern was that the Respondent did not care about the Claimant being injured. The Managers visited him; but these were supervisory visits.

10. Certificate of incapacity indicates the Claimant was using crutches. Clause 7 of his contract stipulated he could be retired, if he was unable to work for more than 100 consecutive days.

11. He was a Riding Guard Supervisor, overseeing a space of about 61 kilometres, ranging from Mombasa City to Mtwapa in Kilifi. He was advised by the Respondent there were no light duties. He did not receive the letter of 18th June 2014, calling for medical assessment. He did not disappear, when asked to provide medical assessment. He claims 3 months’ salary in lieu of notice, holding it is provided for by the law. He claims 38 days of annual leave. This was offered in the letter of termination.

12. He emphasized on redirection that he was injured in the course of duty. The letter of 18th June 2014 was addressed to Coast General Hospital Medical Officer. It was written after the certificate of incapacity of 22nd May 2014. It was not shown the Claimant was called, and declined receipt of the letter dated 18th June 2014. It is not indicated he declined the letter, in the letter of termination. Reference was made to guarding duties; the Claimant was a Rider, not a Guard. The roles are different.

Respondent’s Case

13. The Respondent states the Claimant worked as a Rider, not a Rider Supervisor. His monthly salary was Kshs. 11,602 on retirement, not Kshs. 27,522. He was retired on medical grounds. He failed, for close to 1 year, to produce a certificate from a Medical Professional, indicating he was capable of performing his duty.

14. Without prejudice to the foregoing, the Respondent paid Claimant’s medical bills. He was paid his salary for the entire period he was under treatment. The Respondent had no option but to retire the Claimant on medical grounds, after the Claimant failed to produce medical records to confirm his medical status. He is not entitled to any of the prayers.

15. Although in the Statement of Response, it is stated the Claimant was a Rider, not a Rider Supervisor, the Human Resources Manager testified the Claimant was Rider Supervisor. He checked guards while they were on duty, 3 times a night.

16. He was involved in an accident sustaining an injury on his thigh. The Respondent has an emergency response team. This team took the Claimant to AAR Medical facility; then transferred him to Coast General Hospital. The Respondent paid Claimant’s medical bill in full.

17. If an Employee is incapacitated, the Respondent pays such an Employee his salary for 100 days. If incapacity persists and the 100 days exceeded, the Respondent terminates the affected Employee’s contract of employment. The Respondent values its Employees highly. It was hoped the Claimant would heal, and return to work.

18. The Respondent provided the Claimant with the certificate of incapacity. The hospital would fill the form for purposes of medical assessment. The Claimant was advised by the Respondent how to go about filling the form. It had been recommended because he was on crutches, and had a disk implant, he should be placed on light duty.

19. He was not able to ride, and walk around in fulfillment of his supervisory role. The Respondent received the certificate of incapacity in May 2014. It was necessary for the Respondent to have a medical assessment of the Claimant, to enable the Respondent make a final decision. The Human Resources Manager therefore wrote the letter dated 18th June 2014, seeking to have the Claimant assessed at the Coast General Hospital.

20. The letter was given to the Claimant, but the Claimant did not show up at the workplace or the hospital. He had turned his phone off. The Respondent sent its Officers, including the Shop Steward, to the Claimant’s last known abode; they were informed the Claimant had changed houses. He showed up at the workplace in August 2014 to enquire about his unpaid July 2014 salary. The Respondent gave him the letter of termination.

21. Questioned by the Claimant’s Advocate, the Human Resources Manager testified he was informed about all the issues pertaining to the Claimant, by Respondent’s Officers at Mombasa. He is himself based at the Head Office, Nairobi.

22. The Respondent paid Claimant’s medical bills. An Officer named Papa, kept record of payment, but suffered a stroke, making it impossible for Papa to testify. The motorist who knocked down the Claimant paid a portion of the bill. The motorist was charged with a traffic offence.

23. The Claimant received the letter from the Respondent dated 18th June 2014. It was copied to his employment file. The Branch Manager Ogeto gave the letter to the Claimant. The letter is not indicated as received, by the Claimant. The Claimant was to be driven to the hospital for assessment in the Respondent’s vehicle. The Human Resources Manager did not know if Ogeto called the Claimant to the office. He did not know when Branch Officers visited the Claimant’s residence.

24. The Claimant submitted to the first medical assessment. There could be reason for him to refuse to submit to the second assessment. Termination took place without the second assessment. Termination letter states the Claimant failed to bring medical records to the Respondent. The Respondent did not obtain medical records while the Claimant was hospitalized. Officers who visited the Claimant perused his records; they did not photocopy. Termination was on the ground that the Claimant disappeared from the workplace. The medical grounds stated in the letter of termination, are the grounds shown in the certificate of incapacity.

25. The Human Resources Manager closed his evidence on redirection, with the clarification that the Respondent does not counterclaim medical costs. The letter of 18th June 2014 was not addressed to the Claimant; the Claimant was to attend hospital with the letter in hand. The Witness is Human Resources Manager for all 43 Branches of the Respondent. He did not have reason not to trust what was passed onto him by the Branch Manager. The second assessment was important, in assisting the Witness make a final decision on the Claimant’s employment with the Respondent. The Claimant only showed up at the Respondent’s workplace, after the Respondent stopped payment of his salary. He wanted to continue earning a salary, without working. He had been admitted in hospital for 29 days. The Respondent had no way of knowing Claimant’s medical progress, without the benefit of a second assessment.

Submissions:-

26. The Claimant submits termination of his contract was not based on valid reason, and fair procedure. Section 41 of the Employment Act 2007, as held in Alphonce Sulpice Mzenge v. Mombasa Air Safari Limited [2013]e-KLR, requires an Employer to hear out an Employee, where the Employer intends to terminate the Employee’s contract on among other grounds, physical incapacity. There was no medical evidence relied upon by the Respondent, in establishing Claimant’s incapacity to continue working. Termination was not based on valid reason, and fair procedure, and was therefore unfair.

27. The Respondent submits it was entitled to terminate Claimant’s contract of employment under clause 7. The clause states the Employer, may terminate the Claimant’s contract if the Claimant is at any time prevented from performing his duties by reason of ill health, incapacity, accident or otherwise, for a period exceeding 100 days. Section 41 of the Employment Act allows an Employer to terminate an Employee’s contract for among other things, physical incapacity. The Claimant had a metal plate inserted in his leg, and walked on crutches, making him unable to continue riding his motorcycle, and walking, as he supervised. A period exceeding 100 days had lapsed, warranting termination. There were no light duties, which the Claimant could be assigned.

28. He was heard when he presented his certificate of incapacity to the Respondent. He refers to investigations and interrogations in his Statement of Claim, meaning he was heard. Section 41 of the Employment Act only requires an Employee is informed of the Employer’s intention to terminate on the ground of illness or incapacity. Hearing is only required where termination is based on the situations mentioned under Section 44 [3] and 44 [4] of the Employment Act 2007. The Claimant was given time to provide proof of his capacity to go on working; he did not. Termination was fair in procedure and in substance.

Questions arising:-

29. These as understood by the Court are : whether the Claimant’s contract was terminated by the Respondent for valid reason/ reasons; whether fair procedure was observed; and whether he is entitled to terminal benefits, compensation, costs and interest, as pleaded.

The Court Finds:-

30. The Claimant was employed by the Respondent Private Security Company on 3rd March 2008. It is conceded in the evidence of the Respondent that the Claimant was a Rider Supervisor.

31. He was injured while riding a motorcycle, in the course of duty, on 3rd October 2013. He was admitted at Coast General Hospital, from 4th October 2013, and discharged 8th November 2013. He continued to be treated as an out-patient, and did not resume duty.

32. He was required by the Respondent to provide a certificate of incapacity. He obtained the form from the Respondent. He was assessed, and granted a certificate of incapacity by Doctor Abdi, Coast General Hospital, dated 20th May 2014.

33. The Doctor confirmed the Claimant had a metal plate inserted in his leg and walked by use of crutches. It was recommended the Claimant is placed on light duty.

34. The Respondent did not place the Claimant on light duty. Its position is that there was no suitable light duty at the Respondent’s business. The Respondent required the Claimant to provide further medical evidence, to enable the Respondent make its final determination.

35. The Service Agreement concluded by the Parties on 3rd March 2008, states under clause 7 [v] that the Respondent would be entitled to terminate the Claimant’s contract, if the Claimant:-

‘’…Be prevented from performing his/ her duties by reason of ill health, incapacity, accident or otherwise, for more than 100 days within the period of this agreement.’’

36. While it is true that the Claimant was injured, and away from work for a period exceeding 100 days, those days were not within the period of the Service Agreement. The Service Agreement was for a period of 52 weeks. It states termination was automatic at the end of 52 weeks. It was renewable at the discretion of the Parties.

37. At the time the Claimant was injured, it was not shown under which Service Agreement he worked. There is no renewal document. There is no evidence showing the expired contract of 2008, was relevant to the period the Claimant was injured, and under recuperation. Clause 7 [v] of the Service Agreement of 2008, expired with the rest of the clauses, at the end of 52 weeks.

38. In the absence of a clear provision in the contract of employment guiding sick leave, Parties would have to fall back on the Employment Act 2007, and decisions of the Court, on how the Claimant should have been treated by the Employer.

39. Section 30 of the Employment Act 2007 states that after 2 consecutive months of service with his Employer, an Employee is entitled to sick leave of not less than 7 days with full pay. Thereafter, the Employee merits sick leave of 7 days with half pay, in each period of 12 consecutive months of service. The Employee is required to produce a certificate of incapacity to work, signed by a duly qualified Medical Officer or a person acting on behalf of the Medical Officer, in charge of the medical facility. The Employee is to notify his Employer about his absence, and the reasons for the absence as soon as practicable.

40. The Parties herein seem not to have followed this law. The Claimant was injured on 3rd October 2013. The Respondent participated in affording the Claimant emergency medical attention at AAR Nyali and in transfer to Coast General Hospital. It seems as the Respondent was engaged from the very inception, it was felt there was no need for the Claimant to notify the Respondent about his hospitalization, and absence from work. It is the common evidence of the Parties that Managers of the Respondent visited the Claimant when he was hospitalized.

41. The Respondent continued to pay the Claimant his full salary. The Claimant was away for about 270 days as submitted by the Respondent. There was no formal sick leave issued, but the Respondent seems to have known the Claimant was out and injured, and continued to pay him his full salary.

42. It was not until 20th May 2014, 7 months after the Claimant was injured, that the Respondent called upon him to avail the Respondent a certificate of incapacity, which as suggested above, is required at the outset, when the Employee takes sick leave.

43. The Claimant was referred to Coast General Hospital, and issued with a certificate of incapacity, dated 20th May 2014. This belated certificate of incapacity, recommended the Claimant is placed on light duty.

44. It was not made clear to the Court by the Respondent, why a second certificate, or medical assessment was necessary. The Respondent referred the Claimant to the same hospital which had prepared the certificate of incapacity less than 2 months earlier. For some reasons which the Court does not think are material in this dispute, the Claimant did not go through a second medical assessment.

45. The reasons are not material because the law did not require the Claimant to provide further medical evidence. He had supplied the certificate of incapacity, and was recommended for light duty. What flaw did the Respondent find with the certificate of incapacity, which would prevent the Respondent from making a final decision? It was unnecessary to have the Claimant go through another assessment, less than 2 months after the Doctor, whom he was referred to by the Respondent, certified he was incapacitated, but capable of doing light duty.

46. In Kenya Plantations and Agricultural Workers Union v. Rea Vipingo & Another [2015] e-KLR,the Court suggested there is no clear definition of what the term ‘light duty’ entails. The term is understood variously as requiring the Employer to place the stricken Employee on limited or modified duty. The core element is for the Employer to reasonably accommodate the Employee.

47. Over 100 days extended to the Claimant as unofficial sick leave, with full pay, in light of the provisions of the Employment Act 2007, could be interpreted as part of the Respondent’s effort at reasonable accommodation. The Respondent went beyond the requirement of the law, and accommodated the Claimant for almost 1 year.

48. The Court does not think that the decision to terminate the Claimant’s contract can be validated on the ground only, that the Respondent accommodated the Claimant for 270 days.

49. Reasonable accommodation required the Respondent to genuinely explore other possibilities through which the Claimant could continue to render services to the Respondent, and remain in gainful employment.

50. To conclude that because he had a metal plate inserted in his thigh, and walked with the aid of crutches, he was incapacitated and of no use to the Respondent, was in the view of the Court, not the right conclusion. The Claimant was not immobilized. He was a Rider Supervisor. He could continue with his supervisory role with the assistance of special equipment. The Respondent could acquire for him a motorized wheelchair. It was possible to have him driven to sites, in the Respondent’s motor vehicles. The Respondent testified an arrangement had been made to drive the Claimant to hospital for assessment, in the Respondent’s vehicle. It can be assumed it was possible to assign to him a Rider. He could be assigned clerical work at the Respondent’s Offices. Reasonable accommodation calls for genuine exploration of change in the working environment through physical modification of the workplace to suit the ailing Employee; obtaining of special equipment to facilitate the performance of duty; or reassignment of role within the enterprise. It is not just about extending sick leave, or continuing to pay an Employee his full salary during illness. The Court is not persuaded the Respondent reasonably accommodated the Claimant.

51. To this extent, there was no valid reason underlying termination decision, under Section 43 and 45 of the Employment Act. The conclusion that the Claimant was incapacitated, and completely unable to perform any role, was not the right conclusion. The Respondent appears to have become tired of paying the Claimant full salary for 270 days, while the Claimant rendered no service to the Respondent. It was similarly wrong, to suggest that the Claimant’s failure to report for duty, from 5th October 2013, could be taken as abandonment of duty, as suggested in the letter of retirement. The Respondent knew throughout where the Claimant was, and why he was away. There was no valid reason justifying termination.

52. The investigation and interrogation alluded to in the Submissions made by the Respondent, did not, in the view of the Court amount to a hearing under Section 41 of the Employment Act 2007. There is no evidence that the Claimant was heard when he presented his certificate of incapacity, or at any other time, before he was issued with the termination letter.

53. The Respondent does not interpret Section 41 of the Employment Act correctly. It is not correct that an Employer is only required to explain to the Employee the reason for which the Employer intends to terminate, where that reason is physical incapacity, with no requirement for a hearing. It is not correct that under Section 41 [2], only cases of summary dismissal under Section 44[3] or [4] require the Employer to hear and consider any representation of the Employer or his Representative. The Section refers to ‘terminating’ or ‘summarily dismissing.’ ‘Termination’ would cover the ground of physical incapacity, while ‘summary dismissal’ would relate to the various forms of gross misconduct, poor performance and fundamental breach of contract under Sections 43 and 44 of the Employment Act. Termination is a wider term, denoting end of the employment contract, while summary dismissal is the narrower sense of ending the employment relationship without notice, or with less notice than is given under the contract of employment, or under legislation. Termination may include summary dismissal in its wider sense, but is also commonly used to denote other forms of end of the contract of employment, rather than through summary dismissal. Some Industrial Relations Practitioners for instance, use the term ‘normal termination’ or ‘regular termination’ to denote this form of termination. In all instances of gross misconduct, poor performance, physical incapacity or fundamental breach of contract, there is an obligation to hear the Employee in the manner stipulated under Section 41[ 1] and 41 [2]. It would not make sense to merely have an explanation made by the Employer. These Sections must be read with other relevant provisions such as Section 43 which requires the Employer to prove the reason for termination. How does the Employer prove the reason through a monologue?

54. The Respondent did not hear the Claimant in the manner provided for under Section 41 of the Employment Act 2007. There was no Workmate or Trade Union representative present at any time in the process of termination.

55. Termination was unfair for lack of a valid reason, or reasons, and for lack of fair procedure.

56. The rate of Claimant’s monthly salary, as of the date of termination, is disputed. He states his gross monthly salary was Kshs. 27,522. The Respondent states Claimant’s last gross monthly salary was Kshs. 15,893, the amount stated by the Claimant having included variable overtime pay.

57. The pay slip of July 2013, indicates the Claimant was paid basic salary of Kshs. 11,602, housing allowance of Kshs. 1,741, normal overtime of Kshs. 6,729, [another item stated as stopped off-at Kshs. 4,950], and motorbike allowance of Kshs. 2,500, giving him a total pay of Kshs. 27,522, which the Claimant adopts as his monthly salary for purposes of this Claim.

58. In the pay slip of February 2014, there was no overtime pay or the item described as stopped-off. These items were variable. The salary of February 2014 captured the invariable monthly gross salary, comprising basic salary, housing, and motorbike allowance. Merit award of Kshs. 50 under the pay slip of February 2014, was another variable item. The correct gross monthly salary should therefore comprise basic salary of Kshs. 11,602, housing allowance of Kshs. 1,741 and motorbike allowance of Kshs. 2,500, total Kshs. 15,843.

59. He is granted the equivalent of 10 months’ salary in compensation for unfair termination, at Kshs. 158,430.

60. The evidence on record does not support the prayer for 3 months’ salary in lieu of notice. The Employment Act, and The Regulation of Wages [Protective Security Services] Order which apply to the Industry in which the Claimant served, provide for 1 month notice, or 1 month salary in lieu of notice. The Claimant is granted 1 month salary in lieu of notice at Kshs. 15,843.

61. The Court does not think it is conscionable of the Claimant, to demand annual leave pay. He was out injured for about 270 days, during which he was paid his full salary. The law did not require the Respondent to grant him this extended, fully paid, sick leave. He ought to consider that he rendered no service for 270 days. It is not reasonable to demand to be paid annual leave pay, based on a number of days which in total, is a tiny fraction of the days the Claimant was absent from work. This item is rejected.

62. No order on the costs.

63. Interest allowed at 14% per annum from the date of Judgment, until payment is made in full.

IN SUM, IT IS ORDERED:-

a) Termination was unfair.

b) The Respondent shall pay to the Claimant equivalent of 10 months’ salary in compensation for unfair termination at Kshs. 158,430, and notice pay of 1 month at Kshs. 15,430- total Kshs. 173,860.

c) Interest allowed at 14% per annum from the date of Judgment.

d) No order on the costs.

Dated and delivered at Mombasa this 28th day of February 2017.

James Rika

Judge