1. Dickens Otieno Atieno (the Claimant) was employed by Ramogi Institute of Advanced Technology (the Respondent) through a letter dated 17 October 2018 as member of the Performance Contract Team.
2. Later, the Respondent offered the Claimant a position as a Trainer in Information Technology. The contract was renewed upon expiry.
3. When the contract lapsed, the Respondent offered the Claimant the position of Systems Administrator effective 1 July 2021.
4. The Claimant served as Systems Administrator until 2 December 2021, when the Respondent notified him of the termination of his employment.
5. The Claimant was aggrieved and he sued the Respondent on 20 September 2023 alleging unfair termination of employment and breach of contract.
6. The Respondent filed a Response on 15 November 2023, and the Cause was heard on 18 March 2024, 23 April 2024, 3 June 2024 and 24 June 2024. The Claimant, Principal and another witness called by the Respondent testified.
7. The Claimant filed his submissions on 22 August 2024 (should have been filed and served on or before 24 July 2024) and the Respondent on 7 August 2024.
8. The Court has considered the pleadings, evidence and submissions.
Unfair termination of employment
Procedural fairness
9. Sections 35(1) and 41 of the Employment Act prescribe the basic minimum elements an employer should comply with before terminating an employment contract. These include written notice of at least 28 days where the employee is paid by the month and affording the employee an opportunity to make representations in the presence of a colleague or union official if the employee is a member of a trade union.
10. The Claimant was paid by the month and should have been issued with a written notice of intended termination of employment at least 28 days in advance. The notice is generally called a notice to show cause.
11. The Respondent did not produce any such notice issued to the Claimant alerting him to the possibility of termination of employment and setting out the allegations forming the intention or notice.
12. With regard to affording the Claimant an opportunity to be heard, the Respondent contended that it afforded the Claimant such an opportunity on 21 October 2021. The Respondent produced minutes/notes of the hearing.
13. The Court has keenly looked at the minutes. It talks of investigations and not a disciplinary hearing. The minutes also indicate that:
Dickens refused to take instructions from other officers claiming that it is only the Principal he can listen to.
14. The minutes also refer to section 13(3)(ii) of the Respondent’s Human Resource Policy. The Policy was not produced in Court.
15. The disciplinary hearing contemplated by section 41 of the Employment Act envisages a hearing in the presence of a colleague of the employee facing disciplinary action. If the employee is a member of a trade union, an official of the union should be allowed to participate.
16. The minutes produced by the Respondent do not come near to show that the proceedings were a disciplinary process and not investigative process.
17. The Court is therefore, constrained to find that the process leading to the termination of the Claimant’s employment fell short of the basic tenets of procedural fairness.
Substantive fairness
18. Sections 43 and 45 of the Employment Act require an employer to not only prove the reasons for terminating an employment contract but the validity and fairness of the termination.
19. In an endeavour to discharge the burden, the Respondent called 2 witnesses.
20. The reason given for the termination of the Claimant’s employment in the termination letter was negligence leading to the loss of 3 computers.
21. According to an investigations report produced in Court by the Respondent, there was a training on 13 September and 14 September 2021 supervised by a staff member from the Agricultural and Environment department. The said staff member had been given the keys to the smart room where the computers were kept.
22. The investigations also established that the staff member handed over the keys to an ICT Technician and not the Claimant and that it was the Claimant who found the doors to the smart room not locked on 20 September 2021.
23. Apart from the facts established by the investigations, the Respondent’s Deputy Principal confirmed the Claimant’s testimony that he was on leave when the theft took place.
24. The Claimant was not part of the staff involved in the training in the smart room. His colleagues had custody of the keys for 2 days. The Claimant was on leave when the theft apparently took place.
25. The evidence placed before the Court did not show any nexus between negligence on the part of the Claimant and the theft.
26. The Respondent did not prove that it had valid and fair reasons to terminate the Claimant’s employment.
27. The Court finds the termination was bereft of substantive fairness.
Remedies
Compensation
28. The Claimant sought Kshs 540,000/- as compensation.
29. The Claimant served the Respondent for about 4 years and he did not contribute to the termination either through misconduct or poor performance. He did not inform the Court whether he had secured alternative employment.
30. Considering these factors, the Court is of the view that the equivalent of 10 months’ gross salary as compensation would be appropriate (gross monthly pay was Kshs 45,000/-).
Statutory deductions
31. The Claimant did not lead any evidence to support this head of the claim or relief.
General and exemplary damages
32. The Claimant did not lead any evidence to make a case for the award of general or exemplary damages.
Conclusion and Orders
33. The Court finds and declares that:
(i) The termination of the Claimant’s employment was unfair.
(ii) The Claimant is awarded compensation of Kshs 450,000/-.
34. The Claimant to have costs and interest on the compensation from date of judgement at court rates.