[2023] KEELRC 3236 (KLR)

Shiamala v Kenya National Private Security Workers Union & another; Kenya National Private Security Workers Union, Nairobi County Branch (Interested Party) (Employment and Labour Relations Cause 1178 of 2018) [2023] KEELRC 3236 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEELRC 3236 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 1178 of 2018

AN Mwaure, J

December 8, 2023

Between

Jairus Katere Shiamala

Claimant

and

Kenya National Private Security Workers Union

1st Respondent

Joash Andawa Soita

2nd Respondent

and

Kenya National Private Security Workers Union, Nairobi County Branch

Interested Party

Judgment

Introduction 1. The Claimant filed a Memorandum of Claim dated 11th July 2018.

Claimant’s Case 2. The Claimant avers that he was employed by the 1st Respondent vide an appointment letter dated 14th July 2011 as its organiser at a salary of Kshs. 18,000/-.

3. The Claimant avers that he was obligated to perform activities such as membership mobilization, recruitment, sensitization among other activities. The contract was for a six months to be either renewed or confirmed.

4. The Claimant avers that during the contractual period he discharged his duties diligently and with utmost good faith, however, after expiry of the contract period it was not reviewed and therefore presumed confirmed as he continued working uninterruptedly.

5. The Claimant avers that vide a letter dated 20th January 2012, the 2nd Respondent communicated to him a salary increment to Kshs 20,000 effective on 1st April 2012 and since then the salary gradually increased to Kshs 35,000 on 1st June 2014.

6. The Claimant avers that on 5th April 2015, he was transferred from the Interested Party to the 1st Respondent’s Head Office as the Industrial Relations Officer, which position he held until 31st March 2016 and he never took his annual leave during this period.

7. The Claimant avers that on 31st March 2016, he was summoned and briefed by the 2nd Respondent that the 1st Respondent had terminated his contract and he would be paid his terminal dues at a rate of 30 days per year worked and salary underpayment for acting as an Industrial Relations Officer for one year and was offered another contract.

8. The Claimant avers that at the time of termination of his 1st contract, he was eligible to a salary of Kshs 52,500 as an Industrial Relations Officer and his terminal benefits and other unpaid salaries were tabulated to a total of Kshs 630,000.

9. The Claimant avers that vide an appointment letter dated 1st April 2016 he was reengaged by the 1st Respondent as an Industrial Relations Officer with a consolidated salary of Kshs 52,500 which he accepted as he waited for payment of his terminal benefits.

10. The Claimant avers that late September 2016, he was called by the 2nd Respondent and informed that besides doing a poor job due to a conciliator’s decision on a matter the Claimant represented other employees’ payments, the Claimant fraudulently received a cheque valued Kshs 28,204 of Patrick Shikuri.

11. The Claimant avers that vide a letter dated 24th September 2016, he was suspended for 2 weeks on allegations he fraudulently received two cheques for George Akaka and Patrick Shikuri and that he withheld Patrick’s cheque of Kshs 28,204.

12. The Claimant avers that the said cheque was lost in his custody when he received it on behalf of the 1st Respondent in Nyayo House before the Conciliator. He says that Patrick was not present to receive his cheques and took some time to pick it from the office during which the said cheque got misplaced.

13. The Claimant avers that the 2nd Respondent conspired with Patrick Shikuri and reported the matter to CID Nairobi Central Police Office. The Claimant was called for interrogation but the CID Officer failed to establish a case against him as there was no evidence he acquired the cheque fraudulently or benefitted from the cheque as he acted on behalf of the 1st Respondent when he collected the cheque.

14. The Claimant avers that the 2nd Respondent did not agree with the Officer’s advice and directed that the Claimant pay Patrick Shikuri’s money, which was deducted from his October 2016 salary and even before that he was summarily dismissed on the same allegations vide a letter dated 30th October 2016.

15. The Claimant avers that the appeal overturned the 1st Respondent’s cause of action dated 24th October 2016.

16. The Claimant avers that he successfully appealed against the summary dismissal and was given another appointment letter dated 1st November 2016 which was marred with mischief and conspiracy by the 1st Respondent reducing his salary in the new appointment and deducting his salary without justification.

17. The Claimant avers that vide a letter dated 10th November 2016, he informed the 1st Respondent that instead of reducing his salary downwards, he should be paid his terminal benefits in respect to the employment contract between July 2011 to 31st March 2016 and days worked.

18. The Claimant avers that the 1st Respondent vide a letter dated 17th November 2016 rebutted his letter and upheld the cause of action dated 24th October 2016 and refused to settle his terminal benefits.

19. The Claimant avers that the termination of both contracts is unlawful, unfair, unprocedural and contrary to labour practices.

20. The Claimant avers that he was a contributing as a member of KNPSWU Welfare where he contributed Kshs 1,000 each month for the entire period he worked for the 1st Respondent. The contribution is due to him as he is no longer a member.

Respondents’ Case 21. In opposition to the Claim, the Respondents filed its memorandum of reply dated 2nd March 2019.

22. The Respondents denied each and every allegation contained in the Claimant’s Claim.

23. The Respondents aver that the Claimant’s dismissal was lawful due to gross misconduct and numerous complaints from its members.

24. The Respondent avers that the Claimant extorted money from Patrick Shikuri and George Akaka which dispute was referred to Conciliator Eunice Juma and ended up in a resolution that the Claimant pays up the said monies.

25. The Respondent avers that the Claimant filled a leave form acknowledging to have proceeded on leave and he was paid for any leave not taken up.

Evidence in Court Claimant 26. The Claimant (CW1) testified and produced his witness statement and list of documents dated 11th July 2018 as his evidence in chief and exhibits 1-11.

27. During cross examination, CW1 testified that he was initially employed at a salary of Kshs 18,000; on 1. 4.2012 it was increased to Kshs 20,000, then 25,000; on 25. 6.2014 it was increased to Kshs 35,000 and on 1/4/2016 increased to Kshs 52,500.

28. CW1 testified that in the contract dated 1. 4.2016 there is a provision for gratuity being one month pay for each year of service and when his contract of 31. 3.2016 wwas terminated he was not paid gratuity. He did not complain as all workers were given new contracts.

29. CW1 testified he claimed for acting allowance of Kshs 52,500 and service pay for 5 years worked and not gratuity.

30. CW1 testified that leave for 2012, 2013 and 2014 was not approved.

31. CW1 testified that under his first contract there were complaints on his behaviour. There was a letter from an advocate dated 18. 6.2015 on a matter he was handling involving the Union’s non-member and he was suspended. Under the second contract there was no complaint on his behaviour

32. CW1 testified that vide an agreement dated 27. 10. 2016 and letter dated 29. 9.2016, he undertook to refund Patrick Shikuri, however, he was suspended on 30. 09. 2016.

33. CW1 testified that he did not admit to stealing or asked for clemency. However, he continued to testify that after he asked for clemency he was offered a fresh appointment which he declined.

34. CW1 testified the Respondents then recalled the letter of appointment and he was never paid for the first contract, he is also claiming for his benefits under the 2nd contract as he was not taken through the disciplinary process.

35. CW1 testified that the money from the misplaced cheque of Patrick Shikuri was recovered from his salary.

36. During re-examination, CW1 testified that the acting allowance was for the one year worked as an Industrial Relations officer whose salary was Kshs 52,500 while he was being paid Kshs 35. 000.

37. He also says he was not paid for leave for 2015 despite asking for the same.

38. CW1 testified that he was coerced to write an agreement to pay Patrick and George and denies writing the apology contained in the Respondent’s page 30 of the replying affidavit.

39. CW1 testified that he declined the letter of appointment dated 1. 11. 2016 as his terminal dues for the other two contracts had not been paid and he could not accept a third contract when the other one remained unpaid.

Respondents 40. The 2nd Respondent (RW1) testified for the Respondents and adopted his witness statement dated 2nd March 2019 and documents paginated to 45 as his witness statement and exhibits.

41. RW1 testified that he offered the Claimant employment on 14. 7.2011 and he kept being promoted and motivated until he left employment as an Industrial Relations Officer.

42. RW1 testified that the Claimant was summarily dismissed for numerous complaints by other staff members and he extorted money from Mr Shikuri and George which involved two cheques and not one.

43. RW1 testified that the Claimant went on leave on 2. 11. 2015 to 2. 12. 2015 and on 15. 6.2012 for the 2011 leave which he authorised.

44. RW1 testified that the Claimant was paid all his dues and he has documents to show the same.

45. During cross examination, RW1 testified that the letters submitted in court under page 41-42 dated 24. 9.2015 and 29. 9.2016 were written and signed by the Claimant.

Claimant’s Submissions 46. The Claimant submitted that the 1st Respondent did not tender any evidence to qualify the allegations that the claimant was dismissed on account of gross misconduct resulted from complaints made by several union members, hence it failed the test set out by Section 43 of the Employment Act.

47. The Claimant submitted that the 1st Respondent did not discharge the burden of proof that it dismissed the Claimant for a valid and fair reason. Therefore, his dismissal was unfair within the provision of section 45 of the Employment Act. He relied on the case of Willie Kipkoech Langat v County Public Service Board & 2 Others [2022] eKLR.

48. The Claimant submitted that the monies recovered from him for alleged loss of money meant for the union members settled the dispute and there was no further action to be executed both in law and fact, as any alleged punishment against an employee can only be administered once, to avoid double jeopardy. The Claimant submitted that the 1st Respondent has no reason or justification to bring a matter well settled in these proceedings.

49. The Claimant submitted that prior to his dismissal, he was not put through proper procedure pursuant to sections 41, 43, 44, 45 and 46 of Employment Act, 2007, as such, the dismissal was substantively and procedurally flawed, rendering the entire action unlawful. He relied in the case of Pheoby Aloo Inyanga vs Stockwell One Homes Management Limited & another [2022] eKLR.

50. The Claimant submitted that there is neither a pleading nor evidence from the 1st Respondent that the Claimant was accorded the hearing and reasons before he was summarily dismissed. The 1st Respondent has neither pleaded nor tendered documentary material evidence before this Court demonstrating that after the Claimant was unfairly dismissed, he was ever compensated.

Respondents’ Submissions 51. The Respondents submitted that the Claimant was employed on 15. 7.2011 at a salary of Kshs 18,000 which scaled up to Kshs 35,000 up until 31st March 2016 when the Claimant’s employment was determined in favour of a fresh contract on 1st April 2016 at a monthly salary of Kshs 52,500. The termination was mutual, consensual and without fault.

52. The Respondents submitted that the contract running from 15. 7.2011 to 31. 03. 2016 was terminated mutually and was not a dismissal or unilateral termination by the Respondent.

53. The Respondents submitted that the Respondents have demonstrated goodwill by promising to pay the Claimant and even issued proposals which have been shot down by the Claimant and his advocates.

54. The Respondents submitted that RW1 gave a brief history of what led to the summary dismissal and termination of the Claimant’s contract of 30. 10. 2016 - 17. 11. 2016.

55. The Respondents submitted that the letter dated 30th September 2016 contained reasons leading to the Claimant’s dismissal. The accusation was that the Union received complaints from George Akaka and Patrick Shikuri in which the Claimant fraudulently received two cheques and withheld one belonging to Patrick amounting to Kshs 28,204. The Claimant was accorded a disciplinary hearing on 29. 09. 2016 and the Claimant rendered a written apology which led to his dismissal.

56. The Respondent submitted that the Claimant was served with grounds of wrong doing and was orally heard on 29th September 2016. He says that during cross examination CW1 kept flip-flopping whether he wrote the letter and the meaning of clemency and that the contract dated 1st November 2016 waived the dismissal of 24th October 2016. The Respondents submitted there is no such provision in the contract.

57. The Respondents submitted that the summary dismissal was procedural as the Claimant was heard and dismissed for theft of money from clients he was supposed to represent.

58. The Respondents submitted that the Claimant did not report to work pursuant to the contract of 1st November 2016 and therefore cannot claim damages for a contract he did not complete.

59. The Respondents submitted the Claimant is not entitled to a certificate of service as he has not paid Patrick Shikuri. The agreements of refund were made by the Claimant before the Commissioner of Labour and not the Respondents.

60. The Respondents submitted the Claimant always took leave or instead applied for money as for the year 2014.

61. The Respondents submitted that the union always paid gratuity at the end of every year and the Claimant was also paid. Having been paid gratuity, the Claimant is not entitled to service pay as they mean the same thing.

Analysis and Determination 62. Having considered the pleadings, evidence and written submissions by both parties, the main issue for determination as seen by the court is whether the Claimant’s summary dismissal was irregular, unlawful and unprocedural contrary to employment laws.

63. Section 43 of the Employment Act provides:“(1)In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. (2)The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.”

64. Unfair termination of an employee is set out under Section 45 (2) of the Employment Act which states:“A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason—(i)related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.”

65. Section 44(3) and (4) (g) of the Employment Act provides:“(3)….. an employer may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.(4)Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if:—(c)an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer's property.”

66. RW1 testified that it summarily dismissed the Claimant due to various complaints by union members on the Claimant’s conduct and the extortion of money from Patrick Shikuri and George Akaka. Further, the Claimant had been issued with a notice to show cause dated 22nd June 2015 on incidences that he was handling disputes of individuals who were not members of the union and/or even in the security industry and this was confirmed by CW1 in his testimony during the hearing.

67. However, the complainants did not tender evidence to prove the allegations of having been asked to give money to the claimant. The Respondents have failed to prove that the 1st Respondent had a valid reason to summarily dismiss the Claimant’s employment as there is no concrete evidence that claimant extorted money from the respondent’s members or took a members cheque with intent to steal.

68. The Claimant further submitted that the Respondent did not take him through due procedure as set out under Section 41 of the Employment Act before his dismissal.

69. Section 41 of the Employment Act provides for notification and hearing before termination on grounds of misconduct as follows:“(1)Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.(2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.”

70. Vide a letter dated 30th September 2016 titled ‘Fourteen Days Suspension’ the 1st Respondent informed the Claimant of the allegations levelled against him and that according to his appointment letter the same called for summary dismissal. The 1st Respondent then proceeded to suspend the Claimant pending investigation.

71. Subsequently, the 1st Respondent summarily dismissed the Claimant vide a letter dated 24th October 2016 and averred that it was based on a disciplinary hearing held on 29th September 2016 and the Claimant’s letter dated even date.

72. The 1st Respondent’s letter dated 30th September 2016 does not amount to a notice for a disciplinary hearing and though it lay down the allegations against the Claimant it did not provide any evidence relied on or explained to the Claimant his right to provide his defence or explanation and have another employee or a shop floor union representative of his choice present during this explanation.

73. The Respondents did not produce any minutes of the alleged disciplinary hearing or evidence that it presented the Claimant an opportunity to defend himself against the allegations.

74. The letter dated 29th September 2016, was the Claimant’s version that he received the said cheques of George Akaka who was present and took his and he was left with Patrick’s cheque which he misplaced. It was not a confession that he fraudulently received the cheques and withheld Patrick’s cheque with intent to steal.

75. There was also no witness or evidence tendered to prove claimant extorted money from the members.

76. Therefore, this court hold the Claimant’s dismissal was procedurally unfair as the Respondents failed to accord the Claimant an opportunity to defend himself and to give a verified reason for termination.

77. In the often cited case of Walter Ogal Onuro vs Teachers Service Commission 2013 eKLR the court held:“for a case to pass the fairness test it must both show substantive justification and procedural fairness.”

78. The respondents fell afoul of the fairness test in this case and the court enters judgment in favour of the claimant. Claimant is awarded following reliefs.

79. (1)NoticeIn John Kisaka Masoni v Nzoia Sugar Co. Limited [2016] eKLR, Hon Lady Justice Maureen Onyango held:Having found that the summary dismissal was procedurally unfair, I reduce the summary dismissal of the claimant to normal termination of employment so that the claimant will be entitled to payment of one month's salary in lieu of notice.…….I therefore award the claimant one month's gross salary in lieu of notice in the sum of Shs.26,730 or whatever gross salary he was earning at the time of dismissal.”Accordingly, the Claimant’s summary dismissal is reduced to a normal termination of employment and is hereby entitled to payment of one month's salary in lieu of notice of Kshs 52, 500. (2)Leave daysThe Claimant testified that he had not taken leave for the year 2015 or was paid in lieu of the same. However, the Respondents have produced in this court leave forms confirming that the Claimant took 30 leave days from 2nd November 2015 to 2nd December 2015. Further, vide a letter dated 7th April 2015, the Claimant requested for payment for leave for 2014 which he did not take and was approved.Accordingly, the Claimant is not entitled to this relief of leave days.(3)Acting allowanceThe Claimant averred that on 5th April 2015 to 31st March 2016 he acted as the Industrial Relations Officer but the salary did not reflect the obligations as it remained at Kshs 35,000 rather than Kshs 52,500 which was denied by the Respondents in their response.Section 107 of the Evidence Act provides:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”The Claimant has not proved that he indeed undertook the duties of an Industrial Relations Officer during the aforesaid period warranting entitlement of the acting allowance sought and is not clear what allowance he is claiming. This prayer is declined.(4)Service payThe claimant seems to confuse service pay with severance pay. If claimant was a member of NSSF fund he is not entitled to service pay. There is no mention of NSSF in this claim and so the same is not awarded. Severance pay is only awarded where termination is by redundancy which is not the case so the same is declined.(5)As for compensation for unfair termination the claimant is awarded 5 months equivalent of his salary which amounts to kshs 52,500x5= Kshs 262,500/-.(6)The claimant did not accept the contract dated 1st November 2016 and so there cannot be awards in abstract. The prayers under that contract are therefore all declined.(7)Total award is Kshs 315,000/- plus interest at court rates from date of judgment till full payment.(8)Claimant is also awarded costs.(9)He is to be provided with certificate of service within 30 days from today’s date.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 8TH DAY OF DECEMBER, 2023. ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE