[2015] KEHAT 9 (KLR)

WA v Guru Nanak Ramgharia Sikh Hospital & 3 others (Tribunal Case 002 of 2015) [2015] KEHAT 9 (KLR) (13 November 2015) (Judgment)

Neutral citation: [2015] KEHAT 9 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 002 of 2015

JO Arwa, Chair, A Siparo, Vice Chair, M Deche, MN Kullow, S Bosire, J Muriuki & J Kyambi, Members

November 13, 2015

Between

WA

Claimant

and

Guru Nanak Ramgharia Sikh Hospital & 3 others

Respondent

Judgment

Jurisdiction - jurisdiction of the HIV and AIDS Tribunal - whether the Tribunal has jurisdiction to entertain employment and labor related disputes - whether the Employment Act excluded the Tribunal from handling employment and labor related issues. Brief Facts:The Claimant had been employed as a house caretaker by the 3rd Respondent before being reassigned the duties of a domestic servant by the 3rd and 4th Respondents. In 2011, he requested for lighter duties when his health began deteriorating. The 4th Respondent rejected his request for lighter duties, coerced him into writing a retirement letter and offered him Kshs.6000/= as retirement benefits but the Claimant declined to take it. Later, the 4th Respondent accepted back the Claimant as his employee on condition that he went for a medical checkup at the 1st Respondent’s facility.The medical checkup revealed that the Claimant was HIV positive and he was dismissed from employment on account of his status. The Claimant alleged that the 1st and 2nd Respondent had disclosed his HIV status to the 3rd and 4th Respondent without his knowledge and consent. The Claimant requested for damages for violation of his right to privacy and confidentiality.In their response, the 1st and 2nd Respondent denied liability to the Claimant’s Statement of Claim. The 1st and 2nd Respondents admitted that they had conducted HIV tests on the Claimant but denied disclosing results to the 3rd and 4th Respondents. The 3rd and 4th Respondents filed a Statement of Defense and a Preliminary Objection. The preliminary objection was raised on grounds that the Tribunal lacked jurisdiction to hear and determine the dispute and that the Claimant was estopped from seeking further legal redress against the 3rd and 4th Respondent because he had already sought legal redress for the same under the provisions of the Employment Act 2007. The main issues for determination by the Tribunal in relation to the Preliminary Objection were:i.Whether the dispute was solely a labour and employment relations dispute;ii.Whether the Tribunal had jurisdiction to entertain employment disputes;iii.What was the effect of the 3rd and 4th Respondent’s allegations that the Claimant had lodged a complaint with the Labour officer and that the complaint had been dismissed.

Held: 1. The mere fact that a dispute arose within the workplace or the mere fact that a dispute arose between an employer and an employee did not make the dispute an employment dispute. Hence, the mere fact that an employer announced an employee’s HIV status publicly in the presence of other employees and consequently made an unauthorized disclosure of the employee’s HIV status had not rendered the dispute an employment related dispute.1. The test of defining what an employment dispute was and what it was not had to be determined from the categories of rights allegedly violated. If the rights allegedly violated were rights protected under the Employment Act, 2007 or other labor legislations, the dispute in question had to be treated as an employment and labour relations dispute. Hence, the claims against the 3rd and 4th Respondents could not be properly described as wholly employment and labour relations claims. Only part of the dispute could properly be referred to as labour and employment related, while another part of the dispute fell completely outside the employment and labour relations docket.2. Section 12(1) of Employment and Labour Relations Court Act vested the Employment and Labor Relations Courts with exclusive original and appellate jurisdiction to hear employment and labor relations disputes. The exclusive appellate jurisdiction vested on the court was an indication that the Employment and Labour Relations Court Act had contemplated an appeal to the Employment and Labour Relations Courts from some inferior court or tribunal. That meant that some inferior courts or tribunals had the power to determine employment related disputes; hence, any person aggrieved by the decision of such inferior courts or tribunals had the chance to appeal to the Employment and Labour Relations Courts.

4. According to section 12(5) of the Employment and Labour Relations Court Act, local tribunals established by an Act of Parliament, for example the HIV and AIDS Tribunal, had jurisdiction to hear employment and labour relations matters if their enabling statute conferred such jurisdiction on them. All appeals that arose out of the decisions of such tribunals lay in the Employment and Labour Relations Courts.

5. According to section 26 (1) of the HIV and AIDS Prevention and Control Act, the Tribunal had jurisdiction to hear and determine complaints arising out of any breach of the provisions of the HIV and AIDS Prevention and Control Act. Hence, the HIV and AIDS Tribunal had been clothed with jurisdiction to hear and determine all disputes or complaints arising out of alleged breach of any provision of the HIV and AIDS Prevention and Control Act.

6. The claims against the 3rd and 4th Respondents concerned alleged breach of section 31 of the HIV and AIDS Prevention and Control Act. Consequently, the tribunal had been clothed with jurisdiction to hear and determine the dispute. Any party who would be aggrieved by its decision had the discretion to appeal to the Employment and Labour Relations Court.

7. Section 87 of the Employment Act defines the jurisdiction of Industrial Courts established under Part XII of the Employment Act and not the jurisdiction of the Employment and Labour Relations Courts established under section 4(1) of the Employment and Labour Relations Court Act. The Industrial Courts established under the Employment Act 2007 had been abolished when the Employment and Labour Relations Court Act was passed. Therefore, any provision of the Employment Act that gave them exclusive jurisdiction to hear employment disputes such as section 87 of the Employment Act had to be treated as redundant.

8. Section 87 of the Employment Act, and all previous court decisions that were premised on it had to be read subject to necessary modifications so as to give effect to sections 12(1) and (5) of the Employment and Labour Relations Court Act. Sections 12(1) and (5) of the Employment and Labour Relations Court Act gave tribunals established pursuant to statutes passed by Parliament jurisdiction to hear and determine employment and labour relations disputes in appropriate cases.

9. It had not been proven that the Labour Officer had already made a decision on the issues pending determination before the Tribunal. The issue could not be determined at the preliminary stage in the absence of evidence. Additionally, the issue presented was not a pure point of law. Preliminary objections could only be taken on pure points of law. Hence the issue could only be dealt with during the full hearing of the case.Preliminary objection application lacked merit and was dismissed with costs to the Claimant.

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF NOVEMBER, 2015. ……………………………………………J. ARWA (CHAIRMAN)……………………………………………A. SIPARO (VICE-CHAIRPERSON)……………………………………………M. DECHE (MEMBER)……………………………………………M.N. KULLOW (MEMBER)……………………………………………S. BOSIRE (DR-MEMBER)……………………………………………J. MURIUKI (MEMBER)……………………………………………J. KYAMBI (PROF.-MEMBER).