[2023] KEELRC 163 (KLR)

Shah v Chadha & another (Cause E569 of 2022) [2023] KEELRC 163 (KLR) (31 January 2023) (Ruling)

Neutral citation: [2023] KEELRC 163 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E569 of 2022

J Rika, J

January 31, 2023

Between

Rajul Shah

Claimant

and

Joginder Kaur Chadha

1st Respondent

Chadha Investments

2nd Respondent

Ruling

1. The Claimant filed an Application dated August 15, 2022. There are various provisional orders sought. Most of them are spent, save for prayer 5 which is, that pending hearing and determination of the Claim, the 2nd Respondent is restrained from intimidating, harassing, threatening, frustrating, and taking any retaliatory or adverse actions against the Claimant.

2. The Claimant explains in her founding affidavit, filed on August 15, 2022, that she is the 2nd Respondent’s Finance Manager.

3. The 1st Respondent is a Co-Director of the 2nd Respondent. The other Director is Pervinder Singh Chadha.

4. The 2 Directors are embroiled in a dispute which culminated in a derivative Claim, High Court Civil Case No E160 of 2021, filed by the 1st Respondent, against the Co-Director and the 2nd Respondent.

5. The High Court granted the 1st Respondent an interim order, allowing the 1st Respondent to resume duties as a Director of the 2nd Respondent. The Co-Directors were ordered to operate the 2nd Respondent’s Bank Accounts jointly.

6. After the orders issued, the 1st Respondent resorted to witch-hunting Employees deemed loyal to the Co-Director, including the Claimant. The Claimant suffered harassment, including alleged termination of her contract by the 1st Respondent. She was also denied monthly salary. The actions were taken without the consent of the other Director.

7. The 1st Respondent relies on the Replying Affidavit sworn on October 3, 2022. It is agreed that the Directors have a disagreement on the management of the 2nd Respondent, which is subject- matter of High Court Civil Case No E160 of 2021. The 1st Respondent states that the Co-Director opted to freeze her out the management of the 2nd Respondent, leading to the High Court Claim. The Claimant has chosen to undermine the 1st Respondent’s instructions, and her position as a Co-Director. Her attempt to correct the Claimant, have been characterized as harassment and intimidation. Her claims, concerning delayed payment of salary, affected all Employee during Covid-19-related business constraints. Her salary has since been paid.

8. Co-Director Pervinder Singh Chadha, in his Affidavit sworn on November 1, 2022, supports the Application. He explains that he is involved in a dispute with his Co-Director at the High Court, over the affairs of the 2nd Respondent. The 1st Respondent has since resuming duties as a Director, witch-hunted Employees. She has victimized the Claimant, and alleged to terminate her contract, on account of her good working relationship with Pervinder. The Claimant’s salary was not delayed on account of Covid-19. The 1st Respondent deliberately refused to approve payment, which Pervinder had approved. Pervinder has not been involved in any disciplinary case, relating to the Claimant.

9. Parties agreed to have the Application considered on the strength of their Affidavits and Submissions on record. The Application was last mentioned on November 30, 2022, when the Parties confirmed filing and exchange of their Submissions.

The Court Finds: - 10. The Claimant has established that she has a prima facie case, with probability of success, to warrant the restraining order.

11. This has been achieved through her own evidence, and that of Co-Director Pervinder.

12. The evidence of the 1st Respondent appears also, to firm-up the Application.

13. Mrs Joginder Kaur Chadha, the 1st Respondent herein, states that the Claimant’s salary was delayed, like other Employees’ salaries, because of the business challenges posed by Covid-19 pandemic.

14. The Cash Payment receipts exhibited by Pervinder, have handwritten comments by the 1st Respondent, which she did not deny in her own Affidavits, to have authored.

15. She writes: - I continue to be coerced into writing this cheque and accept this payroll, which includes Rajul [ Claimant], whom I have dismissed back in November 2021 for gross misconduct…

The salary of Rajul should not come out of the CIL [ 2nd Respondent’s] account as she is a personal Employee of Pervinder Singh Chadha…

16. These statements and actions do not support the explanation by the 1st Respondent, that the Claimant’s salary was withheld, because of Covid-19. It also confirms that the 1st Respondent had unilaterally decided to terminate the contract of the Claimant. She considered, without good reason, that the Claimant is a personal Employee of her Co-Director. These actions by the 1st Respondent do not seem to the Court to amount to instructions given to an Employee, which instructions have been disobeyed, resulting in insubordination, as advanced by the 1st Respondent. The 1st Respondent appears to have been brandishing a big, director’s hammer, over the head of an Employee she felt was disloyal to her, and who she felt, had chosen her Co-Director over her, in the 2nd Respondent’s corporate strife.

17. The Claimant merits the protection of the Court. She appears to be a hapless Employee, caught between warring Directors of the Company which employs her.

It Is Ordered: -a.Pending hearing and determination of the claim, the respondents are restrained from intimidating, harassing, mishandling, abusing, threatening, frustrating and taking retaliatory or adverse action against the claimant.b.Costs in the cause.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 31ST DAY OF JANUARY, 2023. JAMES RIKAJUDGE