[2014] KEHAT 3 (KLR)

YBA v Banda & 3 others (Cause 007 of 2012) [2014] KEHAT 3 (KLR) (10 October 2014) (Judgment)

Neutral citation: [2014] KEHAT 3 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 007 of 2012

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

October 10, 2014

Between

YBA

Claimant

and

Brother Nicholas Banda & 3 others & 3 others

Respondent

Judgment

Jurisdiction - jurisdiction of the HIV and AIDS Tribunal - whether the tribunal had jurisdiction to determine matters regarding violation of fundamental rights and freedoms - whether the absence of necessary legislation limited the tribunal’s jurisdiction to determine matters regarding violation of fundamental rights and freedoms.Jurisdiction - jurisdiction of the HIV and AIDS Tribunal - whether the tribunal had jurisdiction to entertain employment related disputes - whether the Employment Act completely excluded the jurisdiction of the Tribunal from handling labor law issues.Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - whether the Claimant’s right to privacy and inherent human dignity had been violated – what were the legal consequences for violation of such rights in case they are proven.Employment Law - fair labor practices - whether the Claimant’s rights to fair labor practice had been violated - whether the procedure for termination of the Claimant as a result of redundancy had been followed by the Respondents. Brief Facts: 1. The Claimant was an employee of the Registered Trustee of Marist Brothers 4th Respondent from 1992 until 1 December, 2012 when her employment was terminated. According to the Claimant, in 2003, she was requested by the 4th Respondent to submit her medical record for filing in her employment file. The employment file and medical records were to be accessed by other employees of the 4th Respondent. The Claimant’s medical record contained her HIV Status which was HIV positive. According to the Claimant, information regarding her HIV Status was shared by the 1st Respondent to the 2nd Respondent. That action led to a series of discriminatory and derogatory actions directed at the Claimant by the 1st, 2nd and 3rd Respondents. The discriminatory, derogatory and humiliating conduct worsened after the Claimant’s husband died in 2007.

2. The Claimant was terminated as an employee of the 4th Respondent but she was neither furnished with a termination letter nor awarded her terminal benefits. The Claimant alleged that she was dismissed solely on account of her HIV status. According to the Claimant, her attempt to make follow ups regarding her terminal benefits had been frustrated by the 4th Respondent. Consequently, the Claimant sought for the following relief against the Respondent: a declaration that the Respondents acts were unlawful; a declaration that the Respondents acts violated the provisions of the HIV and AIDs Prevention and Control Act; damages for emotional and psychological distress; and special damages comprising of severance pay, salary in lieu of notice, accrued leave, leave travelling allowance and pension.

3. The main issues for determination that arose were:i.Whether the Tribunal had jurisdiction to entertain alleged violations of fundamental rights;ii.Whether the tribunal had jurisdiction to entertain matters touching on the violations of the provisions of the Employment Act;iii.Whether the Claimant had been compelled against her wishes to disclose her HIV status to the 1st, 2nd, 3rd and 4th Respondents;iv.Whether the 1st, 2nd, 3rd and 4th Respondents disclosed the Claimant’s HIV status to other employees and staff of the 4th Respondents without the Claimant’s authority;v.Whether the Claimant’s right to confidentiality under sections 20, 21, 22 and 23 of the HIV and AIDS Prevention and Control Act Act No. 14 of 2006 as read together with article 31 of the Constitution were infringed by the Respondents and the consequences of the infringement;vi.Whether the Claimant was subjected to a discriminatory, derogatory and humiliating conduct by the Respondents contrary to the provisions of section 31 of the HIV and AIDS Prevention and Control Act as read together with the provisions of article 27 and 28 of the Constitution, and the legal consequences of that;vii.Whether the Claimant’s rights to fair labour practices under the provisions of article 41 of the Constitution as read together with the provisions of section 40 of the Employment Act were violated, and the legal consequences of the violation. Held:1. Articles 204 and 232 of the Constitution revealed that the people of Kenya had extended to Tribunals and other subordinate courts the power to adjudicate cases of denial, violation and infringement of fundamental rights and freedoms.2. Those provisions had entrusted Parliament with the responsibility of defining the mode of exercise of that power by Tribunals and other subordinate courts while having regard to the numerous categories of rights entrenched in the Bill of Rights. However the legislations envisaged by article 23 2 of the Constitution had not been enacted by Parliament.3. The Tribunal had jurisdiction to entertain disputes that touched on violations of fundamental rights and freedoms. That fact was fortified by article 22 of the Constitution in two important respects:a.First, it confirmed that where rights had been expressly granted to individuals by the Constitution, then the mere failure on the part of Parliament or other organ to develop rules or laws that would have given effect to the full enjoyment by individuals of that right, did not ipso facto operate to eliminate that right. Such a right remained intact and enjoyable despite the fact that rules or laws intended to give full effect to them had not been passed. Therefore, the failure by Parliament to enact legislation contemplated under article 23 2 had not affected the rights of individuals to file applications before the Tribunals and other Courts seeking redress.b.Article 221 expressly provided that “every person” had a right to “institute court proceedings” claiming that a fundamental right or freedom had been denied, infringed, violated or threatened. The provision had not limited the exercise of that right to the “High Court” and instead used the broader term, “Court proceedings”. That expressly meant that such proceedings could be instituted in any court. According to the Constitution a “court” included a subordinate court which as per article 169 included local tribunals established pursuant to Acts of Parliament.4. Some of the prayers by the Claimant fell within the provisions of both the Employment Act and the HIV and AIDS Prevention and Control Act. A literal reading of section 87 of the Employment appeared to remove the matter from the jurisdiction of the Tribunal. On the other hand, section 261 a and 31 of the HIV and AIDS Prevention and Control Act seemed to vest the Tribunal with jurisdiction to determine the matter and grant prayers sought by the Claimant. Those provisions introduced a conflict with regard to the right forum in which the matter could be resolved.5. Section 87 of the Employment Act was enacted with the intention of reserving all labour disputes, not just to experts on labour law, but to those who deeply understood the social and economic ramifications of labour disputes; whereas section 26 of the HIV and AIDS Prevention and Control Act intended to reserve all HIV related disputes including all HIV related disputes arising in the workplace not just to experts on HIV law, but to those who deeply understood the social, economic, medical and psychological ramifications of HIV related disputes.6. The Tribunal was best placed in terms of jurisdiction to handle matters related to HIV related discrimination and mistreatment in the workplace rather than the Industrial court. In addition, the Tribunal was composed of at least three advocates of the High Court of Kenya, each qualified to be appointed as a High Court judge, at least two medical practitioners, at least one person experienced in matters of HIV and AIDS, and finally, at least one person living with HIV virus. Hence, the Tribunal was equipped with the requisite intellectual resources to effectively address all legal, medical, social and psychological issues that could have emerged in the context of HIV and AIDS litigation. The Tribunal was better placed to adjudicate cases of violation of the rights of persons living with HIV and AIDS in the workplace as compared to a single judge of the Industrial Court.7. Although the Tribunal had the jurisdiction to entertain cases dealing with the violation of the rights of persons living with HIV and AIDS in the workplace, it could only assume jurisdiction in cases where such violations had been proven to be solely on account of the HIV status of the concerned individuals.8. The complainant was compelled to disclose her HIV status against her will. The witnesses who testified had not refuted the allegations that the Claimant had been compelled to hand in her medical records so that they could be placed in her employment file. Furthermore, the Claimant’s records had been discovered among the list of documents submitted by the Respondent. That confirmed the fact that they had kept the employee’s medical records and also corroborated the Claimant’s evidence.9. The allegations against the 2nd Respondent to the effect that he had disclosed the Claimant’s HIV status to third parties could not be allowed because they had not been proven to the required standards. However, similar allegations against the 4th Respondent succeeded.10. The Claimant had been compelled to disclose her HIV status without her consent. Immediately that private information became public, the same was further disclosed to third parties, without the Claimants consent. Those actions violated the Claimant’s rights under sections 21 and 22 of the HIV and AIDS Prevention and Control Act as read together with article 31 of the Constitution of Kenya.11. Every employer had to take all necessary measures to protect the confidentiality of their employees in line with the provisions of article 31 of the Constitution in case they received medical records containing information about their HIV status. The Claimant’s medical records which contained information as to her HIV status had been unnecessarily required by the 1st Respondent and thereafter unnecessarily revealed. Furthermore, no lawful justification had been given for insisting that the record be furnished.12. In determining whether an individual’s right to privacy had been violated in any particular case the following factors had to be considered:a.whether the information was obtained in an intrusive manner;b.whether it was about an intimate aspect of the applicant’s life;c.whether it involved data provided by the applicant for one purpose which was used for another; andd.whether it was disseminated to the press, or the general public or persons from whom the applicant could reasonably expect such private information would be withheld.2. Those factors were present in the Claimant’s circumstances hence proving that the Claimant’s rights had been violated. The violations occasioned the Claimant severe emotional and psychological distress.13. The evidence adduced by the Claimant to show that she had been moved from one station of work to the other failed to show that the action was not just a normal transfer or assignment of responsibilities. Furthermore, it had not been proven that other employees had not been subjected to the same treatment.14. The reduction of the Claimant’s salary from Kshs 23,000 to Kshs 14,000, affected many employees. Therefore, it could not be concluded that such conduct was discriminatory.15. There was no discriminatory withdrawal of the medical scheme. No evidence was adduced to substantiate the claim that the Claimant was selectively withdrawn from participating in staff and other organizational events. Moreover, no evidence was given to support allegations of fraudulent deduction of NSSF and NHIF and failure of remitting the same.16. The Claimant had been discriminated against when she was terminated on grounds of redundancy yet the other employees with whom she was sacked with were brought back. Evidence adduced by both the Claimant and the Respondents confirmed that the other employees the Claimant had been terminated with were all brought back except the Claimant. That evidence demonstrated that she was being discriminated against on account of being HIV positive.17. The alleged violation of the Claimant’s right to inherent dignity could not be proven as against the 4th Respondent because the 4th Respondent, being an institution, could not have acted inpropria persona.18. The allegations relating to violation of the Claimant’s right to inherent dignity as against the 1st and 3rd Respondents had to fail because the Claimant failed to prove such allegations to the requisite standards of proof.Section 40 of the Employment Act provided the procedure to be followed in cases of termination on grounds of redundancy. No evidence was given to show that the conditions imposed by section 40 of the Employment Act had been complied with. Moreover, payments which had to be made before an employee was dismissed on grounds of redundancy were never made, although some of them were proven to have been made after the termination. Severance pay was allegedly paid after the termination although the law required that it be paid before the termination.19. There was absolutely no evidence adduced by the Respondents to show that leave travelling allowance, to which the Claimant was entitled to, had been paid. In addition, there was no evidence to show that the Claimant had been paid pension benefits despite the fact that the pay slips annexed by the Respondents had indicated that she was being deducted a certain amount as pension every month.20. The Claimant’s terminal benefits were calculated on the basis of the monthly salary of Kshs. 14,132. 55/= per month. That was an indication that before the termination, the Claimant’s salary was Kshs. 14,132. 55/= per month. That sharply contradicted the Respondents evidence which stated that at the time the Claimant was terminated, she was earning a salary of Kshs. 23,000/= and that after the termination, she was employed on contract and was being paid Kshs. 14,132. 55/= per month. Hence, the calculation of the Claimant’s benefits should have been worked out on the basis of the monthly salary of Kshs. 23,000/= rather than the monthly salary of Kshs. 14,132. 55/=.21. The Claimant’s termination was illegal because the provision of section 40 of the Employment Act was never complied with. Hence the Claimant was entitled to damages for wrongful termination.22. The reduction of the Claimant’s salary from Kshs. 23, 000/= to Kshs. 14,132. 55/= was illegal and wrongful. The Claimant ought to have been paid salary at the rate of Kshs. 23, 000/= between June 2009 and January 2012 when she was actually terminated.23. The arguments that the Claimant had been seconded on contract basis to work for Sabina Country Inn - Karen after she was terminated on grounds of redundancy were rejected. That was because the Memorandum of Understanding between the 4th Respondent and Sabina Country Inn - Karen did not mention any details regarding secondment of staff. In addition, there was sufficient evidence that showed that the Claimant was actually being paid by the 4th Respondent after the alleged termination.24. The amounts deducted out of the Claimant’s benefit and paid to Waumini SACCO were lawfully deducted pursuant to the provisions of the Loan Application and Agreement Form signed by the Claimant. These amounts were to be deducted from the sums adjudged to be due to the Claimant. Kshs. 250, 000/= awarded to the Claimant as damages for emotional and psychological distress to the Claimant to be paid by the 1st and 4th Respondents.

Kshs. 250, 000/= awarded to the Claimant for violation of her rights under article 27 of the Consti- tution as read together with section 31 of the HIV and AIDS Prevention and Control Act.

Claimant awarded Kshs. 276,000/= as damages for wrongful termination.

Claimant be paid the difference between Kshs. 23,000/= and Kshs. 14,132. 55/= for the period between June 2009 and January 2012 amounting to Kshs. 159,614. 10/=.

The Claimant be paid Kshs. 23,000/= as leave allowance for the year 2011.

The amounts deducted out of the Claimant’s benefit and paid to Waumini SACCO were to be de- ducted from the sums adjudged to be due to the Claimant.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF OCTOBER, 2014. ……………………………………………J. ARWACHAIRMAN……………………………………………A. SIPAROVICE-CHAIRPERSON……………………………………………M.N. KULLOWMEMBER……………………………………………S. BOSIRE DR.MEMBER……………………………………………J. MURIUKIMEMBER……………………………………………J. KYAMBI PROF.MEMBER