[2007] KEELRC 26 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT AT NAIROBI

Cause 36 of 2007

TAILORS & TEXTILES WORKERS’ UNION. ....................…………… Claimants.

v.

EMKE GARMENTS KENYA LTD. ………………………………… Respondents.

Issue in Dispute:-

“Wrongful dismissal of Mr. Andrew Mbwagwa”

(hereinafter called the grievant).

Charles N. Ngatia, Director of Industrial Relations and Research, for

the Claimants (hereinafter called the Union).

No appearance for the Respondents (hereinafter called the

Company).

A W A R D.

The Minister for Labour and Human Resource Development referred this dispute to the Court for consideration and determination on 4th April, 2007, under powers conferred upon or vested in him by Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act). The reference, together with the statutory certificates from the Labour Commissioner and the Minister himself under Section 14(9)(e) and (f) of the Act, were received by the Court on the same date, i.e. on 4th April, 2007, and the dispute was listed for mention on 19th April, 2007, and the parties were notified to attend. On this occasion, Mr. Ngatia appeared for the Union but there was no appearance for the Company. Notwithstanding the absence of a representative of the Company, the parties were directed to submit their respective written memoranda or statements on 2nd and 17th May, 2007, and the dispute was fixed for hearing in Mombasa on 30th May, 2007. The parties were also notified of this arrangement. Mr. Ngatia submitted his memorandum, on behalf of the Union, on 10th May, 2007, a copy of which was forwarded, through Mr. A.O. Ambenge, Senior Executive Officer, F.K.E, to the Company, but there was no reply statement thereto.

On 30th May, 2007, Mr. Ngatia appeared for the Union, and Mr. Ambenge, who appeared for the Company, applied for adjournment of the matter to give the parties an opportunity to explore the possibility of an amicable settlement out of Court. In fact, Mr. Ambenge informed the Court that “the parties would settle the matter within a period of three (3) weeks”. Mr. Ngatia did not object to the application for adjournment. In the circumstances, the case was postponed to 20th June, 2007, in Nairobi to record an award by consent. On this date, Mr. Ngatia appeared for the Union, and Mr. Ambenge, who happened to be around on another matter, informed the Court that the management of the Company were unco-operative and intransigent in settling the case amicably. The dispute was then fixed for hearing on 19th July, 2007, and the parties were duly notified to attend. The Company was specifically cautioned, through the Executive Director, F.K.E., that “ in default of its submission and/or appearance, the case will proceed ex-parte”. On 19th July, 2007, Mr. Ngatia appeared for the Union and Mr. Salim Wa-Mwawaza, Executive Officer, F.K.E., who feebly attempted to apply for adjournment, on behalf of Mr. Ambenge for the Company, was overruled. The dispute was, therefore, heard ex-parte.

Mr. Ngatia submitted that the grievant was employed by the Company as a mass production machinist in 1995, at a daily wage of Kshs. 192/= payable fortnightly, and he was dismissed on or about 23rd November, 2002, allegedly on account of low production, laziness and inefficiency. He reported on duty on 25th November, 2002, being a Monday, but he was denied entry into the factory for the said reason. The grievant reported the matter to the Union, and the latter approached the Company for an amicable settlement, but the management of the Company informed the Union that the grievant could collect his terminal dues, amounting to Kshs. 1,600/= only. The Union reported an informal trade dispute to the Labour Officer, Mombasa, a Mr. Gona, whose efforts to convene joint meetings between the parties failed because the management of the Company blatantly refused or ignored to attend. On 19th February, 2003, the Union reported a formal trade dispute to the Minister for Labour, who accepted the dispute and appointed Mr. J.B. Mwangi of Mombasa Labour Office to act as the Investigator; and in his investigation report, which was released to the parties on 15th December, 2004, the Minister found, inter alia, and recommended as follows:-

“FINDINGS.

…………………. Mr. Mbwagwa worked diligently for 7 good years without any warning letter until the dismissal day over what the management termed as disinterest, laziness and inefficiency. It is inconceivable that an employee with seven (7) years service would be described as lazy and inefficient implying that the management tolerated him for that long despite the shortcoming. Moreover, the fact that Mr. Mbwagwa had no warning letter is a clear testimony that this was an employee per excellence. Short of this, at least he ought to have had a record indicating that he oscillated between being a poor worker to an average one. However, the reason advanced is not only laughable but far fetched.

A warning letter would have sufficed as a way of cautioning the claimant. The dismissal was therefore callous and unwarranted.

RECOMMENDATION.

…………………… I recommend that Mr. Mbwagwa’s dismissal be reduced to normal termination and he be paid as follows:

· One month’s salary in lieu of notice.

· Annual leave for two years.

· Wages for days worked in the month of November 2002.

· 3 months salary compensation for loss of employment.

The Provincial Labour Officer, Coast Province is required to assist the parties in tabulating the terminal dues.”

The Minister finally appealed to the parties to accept the recommendation as a basis of resolving the dispute. The Union accepted the recommendation but the Company rejected it. Hence this dispute for consideration and determination.

Mr. Ngatia submitted further in a nutshell that the allegations made against the grievant were not true as he had faithfully and diligently worked for the Company for a period of about eight (8) years with a clean record. He contended that the grievant, who was a permanent employee, should have been served with a charge-sheet and after his explanation was obtained, the company should have held an enquiry before passing the order of dismissal. Therefore his dismissal was wrongful and illegal. For the foregoing reasons, Mr. Ngatia prayed that the grievant be re-instated to his job of mass production machinist from the date of his dismissal, i.e on 23rd November, 2002, without loss of his back wages, privileges and any other benefits; or, in the alternative, he be paid the following terminal benefits and maximum compensation, i.e, 12 months, in accordance with Section 15 (I)(ii) of the Act.

(a) Wages unpaid. Kshs. 4,416/=

(b) House Allowance. ” 68,159/=

(c) Notice pay. ” 9,984/=

(d) Unpaid leave. ” 30,720/=

(e) 12 months’ compensation. ” 59,904/=

Total Kshs. 173,183/=

Dismissal of an employee is a penalty which has serious consequences and it cannot be brought about without issuing a notice to an employee concerned and without giving him a reasonable opportunity to defend himself. In this case, the grievant was dismissed from service without any semblance of enquiry at all. No formal charge-sheet was framed against him in writing for any misconduct whatsoever. No notice of the alleged misconduct was given to him. No opportunity was afforded to him to defend himself. Hence, there was a flagrant violation of the rule of natural justice embodied in the maxim: audi alteram partem (no man shall be condemned unheard). This principle must be read in all circumstances. It requires that no one should be condemned without being given an opportunity to be heard. Before depriving the grievant of his livelihood, the management of the Company should have given him an opportunity to put before them the circumstances in justification of his innocence. It would have been sufficient compliance of the law if the grievant was heard by the management of the Company, either orally or in writing in his defence.

Since the claim or demand by the Union, on behalf of the grievant, stands unchallenged, and in view of the deliberate attempt by the management of the Company to procrastinate these proceedings, the demand hereinabove is granted; and the Company is ORDERED to pay the same to the grievant within thirty (30) days from the date of this award.

On consultation, the members of the Court are in full agreement with this decision.

DATED and delivered in Nairobi this 26th day of July, 2007.

Charles P. Chemmuttut, MBS.,

JUDGE.

O.A. Wafula, J.M. Kilonzo,

MEMBER. MEMBER.