[2018] KEELRC 2479 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 256 OF 2016

(Before Hon. Lady Justice Maureen Onyango)

WILLIAM OKECH ALOO….......................................................CLAIMANT

-Versus-

THE BOARD OF MANAGEMENT

BUTULA BOYS’ HIGH SCHOOL……………………….....RESPONDENT

JUDGMENT

The Claimant WILLIAM OKECH ALOO filed this suit against the Respondent, the Board of Management of Butula Boys High School vide Memorandum of Claim dated 29th August 2016 alleging unfair termination of employment. He prays for the following reliefs-

a) Reinstatement, in the alternative

b) Unpaid salary June 2015 to August 2016. ...................... Kshs.354,548

c) 3 month’ salary in lieu of notice...................................... Kshs.107,844

d) Unpaid annual leave for 14 years...................................... Kshs.56,000

e) Salary for the remaining years to be assessed by court.

f) Service/compensation for unfair dismissal to be assessed by court.

g) Deducted NSSF for 2003 and 2004 and not remitted.......... Kshs.6,000

h) Costs

i) Interest

j) Any other reliefs the court shall deem fit to grant.

The Respondent filed a Memorandum of Appearance but did not file defence and did not attend court for the hearing even though the hearing date was taken in court in the presence of both parties. The case was heard on 6th June 2017.

Claimants Case

The Claimant’s case as set out in the claim and in his testimony in court is that he was employed by the Respondent as an Accounts Clerk on 1st January 2003 and was dismissed on 23rd July 2016. He testified that when a new principal was posted to the School in January 2015, he asked employees to submit their certificates and then appointed the parish priest and the school bursar to scrutinise the certificates. On 27th May 2015 the Claimant was served with a letter of suspension. He responded to the letter of suspension by his letter dated 10th June 2015. He was thereafter served with a letter of interdiction dated 1st July 2015. He responded to the letter of interdiction on 24th July 2015. After that there was no communication from the school. The Claimant wrote to the school on 1st September seeking a way forward on the interdiction but his letter was not responded to. By letter dated 9th March 2016 the Respondent invited the Claimant to appear before the Board of Management on 12th March 2016 which he did. The Claimant was again invited to appear before the Board on 23rd July 2016. He thereafter received a letter of dismissal through the post office.

The Claimant testified that he learned that the Respondent had replaced him with an accounts clerk from Kolanya Boys School where the new principal had come from without the position being advertised.

The Claimant testified that he never received any warning letter for the entire period of 14 years that he worked for the Respondent and that his work was supervised by the bursar and all the principles that he had worked with.

The Claimant prayed for reinstatement or in the alternative payment of terminal dues as prayed in the Claim. He also prayed for costs and interest. The Claimant testified that his salary at the time of employment was Kshs. 5,800. The salary was increased over time and at the time of dismissal he was earning a gross salary of Kshs. 39,996 as reflected in his payslip for the month of August 2013, which was the last payslip issued to him by the Respondent.

Determination

I have considered the pleadings and evidence of the Claimant. The issues for determination are whether his dismissal was fair and if he is entitled to the prayers sought.

Fair Termination

For termination to be fair an employer must comply with both section 41 and 43 of the Employment Act relating to fair procedure and valid reason for termination.

The charges against the claimant in the suspension, interdiction and dismissal letters are as follows:

Suspension

That on diverse dated between 8th November 2014 and 31st December 2014, he as the school accounts clerk collected money using manual receipts which were deliberately not reflected to the official school’s accounting system amounting to Kshs.1,066,451/= (one million an sixty six thousand, four hundred and fifty one only).

That he colluded with old students duding clearing fee arrears whereby students pay less than what the fee balance indicates e.g. Kwoba Justus Form 4W, 2013, Receipt No. 446.

That in preparing creditors’ list for the year 2014, he deliberately exaggerated some creditors’ claims e.g. Mr. Charles Kwena Makokha whose actual claim was Kshs.1,528,000/= (one million, five twenty eight thousand only) while the creditors list you reflected Kshs.2,279,117/= (Two million, two hundred and seventy nine thousand, one hundred and seventeen only). That on the same creditors list he also deliberately left out some creditors e.g. Waraje Investments who claim stood at Kshs.27,.000/= (twenty seven thousand only) among others.

That it was noted that for a particular supply, he changed the official unit price of maize from Kshs.3,800/= to Kshs.4,000/= per bag contrary to the agreed tender price (Ref. L.P.O. No. 170 dated 30th May 2014).

That he deliberately unsubordinated the Board of Management select committee by avoiding to address the above claims in his report as demanded.

The charges Claimant’s response to the charges as contained in the response to the letter of suspension which was replaced with the letter of interdiction as stated in the said letter of interdiction are that;

Claimant’s Response

William Okech Aloo

P.O. Box 95

BUTULA

10/06/2015

The Secretary

Board of Management

Butula Boys Secondary School

P.O. Box Private Bag

Butula

Dear Sir

REF: SUSPENSION FROM EMPLOYMENT

I would like to sincerely thank you and the entire Board of Management for

granting me this opportunity to defend myself against the allegations levelled on me.

I would also like to request that my draft copy dated 7th June 2015 to the Secretary, Board of Management be nullified, as I had not copied it to the Chairman Board of Management.

As per the dates 8th November to 31st December 2014 and the amount quoted of Kshs.1,066,451/= collected manually I cannot be sure of the figure because the receipt books were picked from me unless they are availed.

We used manual receipt books to collect fees arears, damages, bus hire money and tender money. All the collections were handed over to the Bursar and in cases when he is not around we handover to the Principal.

Unfortunately, the handing over sheets are not returned to me for instance I have never received any handing over sheets for this year from January to May 2015. I was only given for the month of March, which I took myself to the current Principal to sign it for me instead of the Bursar handling it.

The software vendor only programmed the fees’ structure for the year 2014. We used manual receipts to collect fees arrears, damages, bus hires and tender money because this had not been programmed and the Bursar as a Finance Advisor was fully aware of the issue, it was not deliberate as alleged.

The County Schools’ Auditor advised us to go to Amukura High School for a

better software which I did in person but still after the current Principal reported, the Bursar insisted that we write manual receipts. I convinced the current Principal and with his efforts the new software is new in place working and nobody can claim that we cannot have an updated trial balance.

My Governors, I did not collude with any student to pay less fess arrears. During the year 2014. The Deputy President William Ruto announced that the 2013 candidates be given their results slips. The former Principal gave direction that we collect arrears from 2013 candidates in consultation with him as he was waiting for a circular over the same. I consulted him from time to time to authorise for the issue of results slips.

A student by the name Kwoba of 2015 came, paid Kshs.20,000/=, I issued a receipt and consulted the former Principal who told me to send him away because of huge arrears. After some hours he came back with Kshs.5,000/=, the other receipt he left it where he had gone to pick the M-Pesa, he told me he had left it with somebody whom he did not specify. I rang the Principal who authorised, I hand over the boy to the Senior Master for clearance.

Little did I know that the student had been sent to arrest me because it had been assumed that since the result slips were in my office I was just pocketing money from the students and issuing result slips. I really followed instructions from my Senior and even informed the Bursar how the boy was a bother to me.

Governors, I did not exaggerate amounts owed to creditors. The Bursar instructed me in two days that there will be a handing over to extract creditor’s list. There was a supplied of windowpanes (E. I. G.A/C), his proforma invoice was per SIC meeting was not confirming to what he supplied. I told the Bursar to correct it and inform the supplier and that we should sit as an office and go over the creditors because of the short time we had but sofa we have not done , only to get a letter that I exaggerated the creditors. I remember one creditor Sartex was left out of the list.

I believe I am not corrupt; I have worked in office for the alt 14 years without soliciting for bribes from parents, creditors, students and teachers. My past records speaks for myself, I follow instructions from seniors and I have never been dishonest because I even went to the audit unit to cross examine the cash book which was the work of the School Bursar.

My Governors I am competent in delivering services if given enough support. I do take instructions from my seniors. I joined Butula Boys Secondary School with KATC I and II. I have kept improving my academic standards up to CPA (K) and as per now, I am a fourth year student at Jomo Kenyatta University of Agriculture and Technology taking Bachelor of commerce.

I came up with an idea of our school moving manuals systems to digitals systems in office.

Thank you Governors for your support and cooperation.

I look forward to you kind consideration.

Yours faithfully

WILLIAM OKECHI ALOO

0713441626

Cc Board of Management Chairman

The letter inviting the Claimant for hearing did not specify the charges against him. He was further not given an opportunity to be represented or accompanied by either a fellow employee of his choice or a union official.

As stated in his response it was not possible for the Claimant to substantively respond to the charges against him without the supporting documents which were not given to him. The charges were also too many and related to periods spanning several years, from 2013 to 2014, with the charges being raised in May 2015 and the dismissal in July 2016, giving the impression of witch hunting.

I find that in the all the circumstances of this case, the Respondent did not act in accordance with justice and equity in dismissing the Claimant. 1st he was suspended then interdicted with no explanation for the same. Secondly he was kept on interdiction and suspension for an inordinately long period, from May 2015 to July 2016, a period of more than one year. Thirdly the letter of interdiction and suspension do not refer to any terms of service applicable to the Claimant authorising either or both suspension and interdiction. Since both are not provided for in the Employment Act they can only be lawful if provided in the Claimant’s terms and conditions of employment. Finally, the hearing was not conducted in the manner prescribed in section 41 of the Act.

From the foregoing I find and hold that the dismissal was unfair.

Remedies

(i) Reinstatement

The Claimant prayed for reinstatement. According to section 49(4) of the Employment Act reinstatement is only available in exceptional circumstances. The Claimant has not proved any exceptional circumstances. Secondly there is likely to be very strained relations should the Claimant be sent to work under the same principal, a situation that would be uncomfortable to both the Claimant and the principal. For these reasons I do not find reinstatement appropriate.

The Claimant prayed for the following in the alternative-

(ii) Unpaid Salary from June 2015 to August 2016

Having found the dismissal unfair I order that all salary withheld during suspension and interdiction to the date of dismissal be refunded to the Claimant.

(iii) Salary in Lieu of Notice

The Claimant is entitled to notice or pay in lieu. He has however not demonstrated that his terms provided for 3 months’ notice as prayed. I award him one month’s salary in lieu of notice in the sum of Kshs. 39,996.

(iv) Unpaid Annual Leave for 14 years

The Claimant did not adduce any evidence to prove that he did not take annual leave for the entire period he worked for the Respondent. The prayer for leave is dismissed as it was not proved.

(v) Salary for remaining years of service

The Claimant is not entitled to salary for remaining years of service as all employment relationships are subject to termination as provided in the contract or by law. There is no obligation on any employer to keep an employee to the date of retirement just as there is no similar obligation of an employee to work for an employer till retirement. This court has severally held that employment contracts are not intended to unfairly enrich employees and the court will not order anticipatory payments. See the case of Engineer Francis N. Gachuri v Energy Regulatory CommissionandElizabeth Wakanyi Kibe referred to by the Respondent.

(vi) Deducted NSSF for 2003 and 2004 not remitted

No evidence was adduced in support of this prayer. In any event such claim would be time barred. The foregoing notwithstanding, there are mechanisms to follow up such payments through NSSF which has sufficient legal and administrative machinery to do the same. The Claimant is advised to follow up the same with NSSF.

(vii) Compensation for Unfair Termination

Having found the dismissal of the Claimant unfair and taking into account the length of his service which was in excess of 14 years, I award him maximum compensation of 12 months’ salary in the sum of Kshs. 479,952.

(viii) Costs and Interest

The Respondent will pay the Claimant’s costs for this suit and decretal sum shall attract interest at court rates from date of judgment.

DATED AND SIGNED ON THIS 4TH DAY OF JANUARY 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED ON THIS 1ST DAY OF FEBRUARY 2018

MATHEWS NDERI NDUMA

JUDGE