Following judgment in Mombasa MCELRC No.420 of 2020 delivered on 17 November 2023, the appellant aggrieved, filed this appeal seeking the judgment be set aside and substituted with an order dismissing the claim with costs. The appellant has six (6) grounds of appeal.
The background to this appeal is a claim filed by the respondent before the trial court. His case was that he was employed as a driver by the appellant earning Ksh.35, 000 per month. In March 2020 the appellant intimated that his position had become redundant or that his services were no longer required and he was released on the same day. There was no written notice issued, warning of termination of employment or any due process. He claimed that this resulted in unfair termination of employment and claimed the following dues;
- Notice pay Ksh.35,000;
- 12 months compensation Ksh.420,000;
- Unpaid house allowance for 63 months Ksh.330,750;
- Severance pay for 6 years Ksh.105,000;
- Annual leave for 6 years Ksh.210,000;
- Public holidays for 6 years Ksh.154,000;
- Off days for 6 years Ksh.336,000;
- Sacco dues and dividends Ksh.200,000;
- Certificate of service;
- Costs of the suit.
In response, the appellant’s case was that the respondent was employed on 18 December 2015 on probation for 6 months at a wage of Ksh.24, 720 per month. He was formally employed on 18 June 2016 at a gross wage of Ksh.35, 003 per month. On 5 March 2020 at around 11 pm, while the respondent was driving motor vehicle registration No. KBX 490N/ZE5849 headed towards Machakos, on reaching Mwambi Hills along Nairobi Mombasa road, he decided to overtake a truck motor vehicle No. KBH 262J/ZF9797. In the process, he rammed it from behind causing it to skid off the road into a ditch and causing extensive damage to both vehicles. Following police investigations, the respondent was found fully to blame for the accident. His employment was terminated by a collective agreement of an internal disciplinary committee of the HR manager, and workshop manager. Transport manager, shop steward, driver trainer and driver KAZ 588Z where the respondent admitted that he was at fault for having hit another truck from behind. A notice terminating employment dated 13 March 2020 was issued giving reasons. The respondent had carelessly and improperly perfumed his work to the detriment and loss of the appellant’s property. The respondent wrote an apology letter over his conduct leading to termination of employment that was justified. The claims made are without merit and should be dismissed.
The trial court heard the parties and held that there was an unfair termination of employment and that the claims made were justified. The reliefs sought in the Memorandum of Claim were granted with costs and interests.
Aggrieved, the appellant’s case is that the trial court erred in finding that there was no warning before the dismissal of the respondent and hence employment was terminated unfairly. The disciplinary hearing was not considered. In making the awards, the trial court failed to take into account that the respondent had been paid his house allowances which was admitted in evidence. The respondent had failed to establish a prima facie case to the required standard to as to shift the burden on the appellant of justifying the grounds leading to termination of employment. The trial court failed to find that the respondent admitted that he caused the accident which observed summary dismissal as contained in the Collective Bargaining Agreement CA No.94 of 2019.
Both parties attended court on 22 July 2024 and agreed to address the appeal by way of written submissions.
Only the respondent complied.
The respondent submitted that the findings by the trial court were based on evidence and should be affirmed and the appeal dismissed with costs. The respondent testified that he was not issued with any warning letter before his summary dismissal. Following a road traffic accident, the respondent was not issued with any warning or notice as provided under CBA No.94 of 2019 between the appellant and Transport Workers Union.
There was an unfair termination of employment as the disciplinary proceedings were rushed to get rid of the respondent. In the case of Wanyera v Central Isiolo Investment Limited Appeal E002 of 2023, the court held that the respondent did not prove any valid reasons for termination of employment. Under CBA No.94 of 2019, under the suspension clause, where an employee is found innocent following alleged gross misconduct, he should be reinstated. Section 41 of the Employment Act provides that the employer must take the employee through due process even where the case involves gross misconduct.
The awards of house allowance were justified based on the evidence. The respondent testified that his wage was not inclusive of a house allowance. There was a prima facie case and the trial court properly analyzed the evidence. The appeal should be dismissed with costs.
Determination
In a first appeal, the court is obliged to reappraise and re-evaluate the evidence and come to independent findings. While ordinarily, the first appellate court will not interfere with the conclusions of the trial court that are underpinned by the advantage of that court in seeing and hearing the witnesses testify.
What comes out clearly in this appeal and based on the records filed is that the respondent, while in the employment of the appellant, was unionized. There was a CBA regulating the relationships on the shop floor. There is a reference to CBA registered with the court CA. No.94 of 2019.
Where the respondent enjoyed employment protections under a CBA, being unionized, his claim should have been filed with the court and not the lower court. This matter should have been addressed by the parties instantly. This is not highlighted in this appeal, I believe, under the mistaken belief that this was a matter for the lower court to address.
Once employment relations are protected under a CBA, any resulting claims are based on labour relations and not employment relations. In conferring jurisdiction to the lower court, the Chief Justice through Gazette Notice No. 6024 of 22 June 2018 directed that;
- Disputes arising from contracts of employment (excluding trade disputes under the Labour Relations Act, 2007) where employees' gross monthly pay does not exceed Ksh.80, 000.00 commenced and continued in accordance with the Employment and Labour Relations Court (Procedure) Rules, 2016.
- …
The suit should have been filed in this court.
Going to the appeal, through a notice dated 18 March 2020, the appellant terminated the respondent’s employment with immediate effect due to a motor accident. The appellant noted that the decision was reached after the completion of an internal disciplinary process and taking into account that;
On 13th March 2020, you agreed that you were involved in a major accident at Kyumvi on 05th March 2020 whereby you were at fault due to hitting another truck from behind. …
Indeed, the respondent admitted to these facts in his evidence before the trial court. Upon cross-examination, he testified that;
… on 5/3/2020 there was an accident KBX 490N-N2484. It was driven by me. It is the vehicle that caused the accident. I was called to a disciplinary meeting. A decision was made to terminate my services. … I admitted I was involved in the accident. …
An employer is allowed to summarily dismiss an employee under the provisions of Section 44 of the Employment Act. Section 44(1) of the Act provides that;
(1) Summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.
The protections to the employee are under Section 41(2) of the Employment Act in that he must be issued with notice and allowed to attend to make his representations within a short period as the case relates to gross misconduct.
The respondent’s case is that he was not charged in any criminal case and was not issued with notice.
Whatever explanation the respondent had for what he did, causing an accident and leading to loss both to the appellant and third party, the fact of the matter is that this is defined as gross misconduct under Section 44(4)(g) of the Employment Act. Causing loss to the property of the employer, performing work poorly leading to negligence and loss to the employer is gross misconduct. See Matsesho v Newton (Cause 9 of 2019) [2022] KEELRC. The respondent engaged in acts of gross misconduct as contemplated under section 44 of the Employment Act.
The fact that no criminal charges were made against the respondent arising from the same set of facts does not absolve him under the Employment Act. The appellant could validly terminate employment under section 44 of the Employment Act. All that section 44(4) (g) of the Act requires for an employer to terminate an employee is that he has reasonable and sufficient grounds to suspect that the employee has been involved in a criminal act which is injurious to the person or property of the employer.
I therefore find that the appellant had valid reasons to terminate the employee and the respondent. There was sufficient evidence to point at conduct of gross misconduct on the part of the respondent. The due process of Section 44(1) read together with Section 41(2) of the Employment Act was adhered to. There was a notice and disciplinary hearing in the presence of a shop steward.
The remedy of notice pay and compensation were allocated by error.
On the claim for house allowances, the respondent was employed as a driver in Mombasa. He had duties spread within the East Africa region. A driver working in Mombasa in March 2020 had a wage of Ksh. 30,627.45 plus a 15% house allowance of Ksh.4, 594.20 total gross of Ksh.35, 221.60
The CBA provided for a house allowance of Ksh.4, 000 for all employees earning above Ksh.15, 000. This amount allocation cannot go below the minimum legal threshold under the Wage Orders.
The respondent was paid a wage of Ksh.35, 003 less Ksh.218 each month. This being a continuing injury over the years, the respondent should have addressed this underpayment in house allowance within the provisions of Section 90 of the Employment Act as held in the case of The German School Society & another v Ohany & another (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA the Court of Appeal held that;
Normally, a belated service related claim will be rejected on the ground of delay and laches or limitation. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Borrowing from the excerpts reproduced above and considering that the respondent continued to work under the same circumstances, we find and hold that the breach complained of was of a continuing nature, capable of giving rise to a legal injury which assumes the nature of a continuing wrong. It follows that the appellant’s argument that the claims were time barred fails. On the contrary, the said claims fall within the ambit of a continuing wrongs contemplated under section 90.
The respondent should have asserted his rights at work and secured protections under Section 46(h) of the Employment Act. In the circumstances, he is only entitled to an underpaid house allowance going back 12 months at Ksh.218 x 12 = Ksh.2, 616.
On the claim for severance pay, is a case of summary dismissal on the stated reasons which the court has analyzed and established there were valid and justified grounds. Severance pay only arises out of redundancy and this case is distinguishable.
On the claim for annual leave, on 18 March 2020, the appellant paid terminal dues to the respondent. The record is not controverted. The payment included 3 leave days accrued in the year 2019 and 3.5 days accrued in the year 2020.
Under Section 28(4) of the Employment Act, the leave days due were well addressed by the appellant. See Chemelil Sugar Company v Ebrahim Ochieng Otuon, Robert Osero Nyakundi & Philip Anyiego Gaya [2015] KECA 202 (KLR).
On the claim for public holidays, such days are not general. Each public holiday is published by the Minister and when claimed, a claimant or employee should particularize the days sought under such heading. A general ward for 6 years cannot suffice.
Off days are a right under the provisions of Section 27 of the Employment Act.
In the clearance sheet on 13 March 2020 and the final payment voucher on 18 March 2020, the appellant only took into account the wages for days worked and leave days. There is no record of the allocation of rest days. Again, as a continuing injury, this should have not waited for 6 years. The only entitlement goes back to 12 months.
In this case, under the CBA, clause (6.0) provided for overtime payments. The tabulations are per the nature of the work allocated. The rider under clause 6.5 that paragraphs (a) and (b) of this clause shall not apply to drivers and loaders, instead they shall receive compensation in lieu of a trip made as follows. …
The respondent was a driver. He was appropriately covered under the CBA.
On the Sacco dues and dividends, Sacco are in their nature self-regulating. Even where there is a close relationship with the employer, each Sacco has rules and regulations. Any shares or dividends are regulated under the Sacco and not by the employer. The respondent cannot claim his dues therefrom, from the employer. To award such dues as part of terminal dues is in error.
A certificate of service is a right at the end of employment. This should be issued under Section 51 of the Employment Act.
The appeal succeed save for the underpaid house allowance of Ksh.2, 616 based on the application of the CBA rate which should be corrected in future negotiations. In this regard, each party should pay its costs for the appeal and the trial court.
Orders accordingly.
Delivered in open court at Mombasa on this 24 day of October 2024.
M. MBARŨ
JUDGE