Circumstances under which an Employer Could Send an Employee on Compulsory Leave

Thomson Kerongo & 2 others v James Omariba Nyaoga & 3 others

Petition No. 32 of 2017

Employment and Labour Relations Court at Kisumu

Maureen Onyango J

November 24, 2017

Reported by Robai Sivikhe and Kakai Toili

Employment Law – disciplinary actions by employers – compulsory leave - circumstances under which an employer could send an employee on compulsory leave - what were the circumstances under which an employer could send an employee on compulsory leave

Constitutional law – leadership and integrity – breach of leadership and integrity code – where a state officer committed breach of the Leadership and Integrity Code - what were the circumstances in which a court could interfere with a disciplinary action by an employer against an employee – Constitution of Kenya, 2010 Chapter Six and article 236; Leadership and Integrity Act sections 42, 43, 52 and 62

Jurisdiction – Employment and Labour Relations Court – disciplinary actions by employers – jurisdiction of the Employment and Labour Relations Court over disciplinary actions by employers - what were the circumstances in which a court could interfere with a disciplinary action by an employer against an employee

Word and Phrases – definition - Prima facie – definition of a prima facie case - establishment of a legally required rebuttable presumption, or a party’s production of enough evidence to allow the fact trier to infer the fact at issue and rule in the party’s favour - Black’s Law Dictionary 9th Edition

Brief Facts:

The 1^st and 2^nd Petitioners were members of the 3^rd Petitioner, an organisation registered under section 10 of the Non-Governmental Organisation Coordination Act. The 1^st Petitioner was the Chairman of the 3^rd Petitioner. The petition was filed against James Omariba Nyaoga, the 1^st  Respondent who was the Clerk of the County Assembly, Kisii County and the Ethics and Anti-Corruption Commission, the 2^nd Respondent, a constitutional commission established under article 79 of the Constitution of Kenya 2010 as read with section 3(1) of the Anti-Corruption and Economic Crimes Act, 2003 and the Ethics and Ant-Corruption Commission Act, 2011, with the mandate to investigate corruption and related matters either on its own motion or upon receipt of a complaint.

The 1^st Respondent was deployed as an interim clerk of the Kisii County Assembly by the Transition Authority on secondment by letter dated February 25, 2013. He was appointed as a substantive Clerk of the County Assembly on April 24, 2013 by the County Assembly Service Board (the Board) subject to approval by the County Assembly, which approval was given on April 29, 2013 by unanimous vote.

The former Speaker of the County Assembly of Kisii sent the 1^st Respondent on compulsory leave together with the Director of Finance, an action that they unsuccessfully challenged in court through Kisumu ELRC Petition No. 12 and 18 of 2015 but which was resolved when the two of them were cleared and their suspension lifted by the Board which reinstated them.

 On July 5, 2017 the former Speaker authored a letter and handed it to the 1^st Respondent on July 17, 2017 sending him on compulsory leave. His compulsory leave was deliberated upon by the Board at its meeting held on the same day whereupon a decision was made to reinstate the 1^st Respondent.

The Petitioner moved to the instant Court on the grounds that the 1st Respondent was in office unconstitutionally as he was sent on compulsory leave and the compulsory leave had not been lifted, that the 1^st Respondent was not fit to hold public office as he was under investigation for misappropriation of public funds among other grounds

Issues:

1. What were the circumstances under which an employer could send an employee on compulsory leave?
2. What was the procedure to be followed when a state officer had committed a breach of the Leadership and Integrity Code?
3. What were the circumstances in which a court could interfere with a disciplinary action by an employer against an employee?

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 236 - Protection of public officers.

A public officer shall not be—

1. victimised or discriminated against for having performed the functions of office in accordance with this Constitution or any other law; or
2. dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.

Leadership and Integrity Act

Section 42 - Lodging of complaints and investigations.

1. A person who alleges that a State officer has committed a breach of the Code, may lodge a complaint with the relevant public entity and the public entity shall register and inquire into the complaint.
2. A public entity may authorize any of its officers to inquire into a complaint on its behalf and determine whether a State officer has contravened the Code.
3. An investigation may be made at the instance of a public entity.
4. A State officer being investigated under this section shall be informed by the investigating authority, of the complaint made against that State officer and shall be given a reasonable opportunity to make a representation relating to the issue, before the investigation is concluded.
5. A person who has lodged a complaint against a State officer shall be entitled to be informed of any action taken or to be taken in respect of the complaint andshall be afforded a hearing.
6. Where an investigation under this section is initiated while the State officer is in office, it may be continued even after the person under investigation has ceased to be a State officer.
7. Subject to the Constitution and any regulations for the enforcement of the Code made under this Act, a State officer may be suspended from office pending the investigation and determination of allegations made against that State officer where such suspension is considered necessary.
8. The Commission shall prescribe disciplinary mechanisms and procedures to be followed in the event of contravention of the Code, and those mechanisms and procedures shall comply with Article 47 of the Constitution or any other applicable written law for the time being in force.
9. The public entity or an authorized officer may take disciplinary action against a State officer serving in the public entity.
10. Notwithstanding subsection (2) and (3), the Commission may inquire into and investigate an alleged breach of the Code either upon receipt of a complaint or on its own motion.

Section 43 - Referral for possible civil or criminal proceedings.

1. If upon investigation under this Part, the public entity is of the opinion that civil or criminal proceedings ought to be preferred against the respective State officer, the public entity shall refer the matter to—

1. the Commission or the Attorney-General, with respect to civil matters;
2. the Director of Public Prosecutions, with respect to criminal matters; or
3. any other appropriate authority.

2. Referral of a matter under subsection (1) shall not preclude the person, the State organ or public entity referring the matter from undertaking further investigations or action into the matter.
3. If a matter is referred to the Commission under subsection (1)(a) and in the opinion of the Commission, criminal proceedings ought to be preferred against the respective State officer, the matter shall be referred to the Director of Public Prosecutions.
4. In addition to the prosecution of a State officer, the Commission may take any other action that it considers necessary.
5. The prosecution of any State officer is not a bar to other steps that the Commission may consider necessary.

Section 52 - Application of Chapter Six of the Constitution and this Act to public officers generally.

1. Pursuant to Article 80(c) of the Constitution, the provisions of Chapter Six of the Constitution and Part II of this Act except section 18 shall apply to all public officers as if they were State officers.
2. For the purposes of subsection (1), the relevant public entity recognized or established pursuant to section 3 of the Public Officer Ethics Act, 2003 (No. 4 of 2003) shall enforce the provisions of this Act as if they were provided for under the Public Officer Ethics Act, 2003 (No. 4 of 2003).

Anti-Corruption and Economic Crimes Act, 2003

Section 62 - Suspension, if charged with corruption or economic crime.

1. A public officer or state officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge until the conclusion of the case: Provided that the case shall be determined within twenty-four months.
2. A suspended public officer who is on half pay shall continue to receive the full amount of any allowances.
3. The public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted.
4. This section does not derogate from any power or requirement under any law under which the public officer may be suspended without pay or dismissed.
5. The following shall apply with respect to a charge in proceedings instituted otherwise than by or under the direction of the Attorney-General—

1. this section does not apply to the charge unless permission is given by the court or the Attorney-General to prosecute or the proceedings are taken over by the Attorney-General; and
2. if permission is given or the proceedings are taken over, the date of the charge shall be deemed, for the purposes of this section, to be the date when the permission is given or the proceedings are taken over.

6. This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.
7. This section does not apply with respect to a charge laid before this Act came into operation.

Held:

1. An authorised officer acting under lawful authority could take interlocutory action against an officer working under his supervision before substantive action was taken at a formal meeting to deliberate on the matter. That was because convening meetings of disciplinary bodies could take time and circumstances could arise when immediate action was necessary to address certain situations.
2. There was no law prohibiting an employer from sending an employee on compulsory leave where the circumstances warranted it and provided it was an interim measure. Compulsory leave had the effect of only removing an employee from the workplace temporarily without interfering with his terms of service. An action was only illegal if it was prohibited by law. Not all lawful matters were prescribed by law. On the contrary it was only that which was prohibited by law that was illegal or unlawful. 
3.  The Speaker, as Chairman of the County Assembly Service Board, had authority to send the 1^st Respondent on compulsory leave pending the convening of a formal meeting of the Board to deliberate on appropriate action to be taken against him.
4. The County Assembly Service Board undertook its business through formally constituted meetings. In the instant case two members of the County Assembly Service Board met and nullified the letter of the Chairman sending the 1^st Respondent on compulsory leave on the very day that the letter was written. Unlike the Chairman who was in office permanently, the other members could only act in a formally convened meeting called by either the Chairman or the Secretary. Since no minutes had been presented to the Court to prove that there was a properly convened meeting at which the Chairman’s letter to the 1st Respondent was discussed and a resolution passed by the Board, the nullification of the letter of the Chairman was unlawful because there was no lawful authorised or regular meeting to discuss the issue.
5. The County Assembly Service Act, 2017 was assented to by the President on July 6, 2017 and came into force on July 27, 2017. The Act was not in force on July 5, 2017 when the 1^st Respondent was sent on compulsory leave and could not have been breached.
6. The 1^st Respondent had not expressly denied the specific allegations of questionable integrity and malfeasance against him. He cited the sour relationship between him and the former speaker of the County Assembly as the reason for the letters sending him on compulsory leave and the instant petition. He left almost all the allegations against him unchallenged with the result that the court was left with the impression that there had to be some validity in the allegations against him and valid reason for the Petitioners to invoke the jurisdiction of the Court. The Petitioners have established a prima facie case.
7. Under section 42 of the Leadership and Integrity Act a person who alleged that a state officer had committed a breach of the Leadership and Integrity Code was required to lodge a complaint with the relevant public entity. Such public entity was the 2^nd Respondent who was required to inquire into the complaint and determine whether the state officer had contravened the Code of Leadership and Integrity. Section 43 provided that where the investigations disclosed that civil or criminal proceedings ought to have been preferred against the state officer, the public entity had to refer the matter to the Attorney General with respect to civil matters and to the Director of Public Prosecutions with respect to criminal matters or to any other appropriate authority.
8. Section 52 of the Leadership and Integrity Act extended the provisions of Chapter Six of the Constitution and the Act to public officers, like the 1^st Respondent. The primary Act under which the 2^nd Respondent ought to have investigated public servants was the Anti-Corruption and Economic Crimes Act, 2003. Under section 64 of the Act there was provision for disqualification of a person convicted of an offence under the Act from holding public office. Section 62 of the Act provided for disciplinary action against such an officer.
9. The only valid authority which could remove a public officer from office was the employer of such an officer, after taking them through due process as provided in article 236 of the Constitution.
10. The 1^st Respondent’s case could be addressed by the County Assembly Service Board as the employer or the County Assembly which had oversight authority over all matters in the County including the County Assembly Service Board. That was the procedure that had been codified in the County Assembly Service Act, 2017.
11. The Court could not act directly and remove the 1^st Respondent from office as that would contravene the 1^st Respondent’s constitutional rights to due process as provided under article 236. Due process was an internal disciplinary process to be exercised by an employer. The Court was not expected to enter into the boardrooms of the employers to micro manage their affairs.
12. The Employment Act did not intend that courts take away managerial prerogatives from employers. To give the interim order would have had the effect of stifling the management prerogative in staff administration. It would have meant the employer did not have any more say in the contract of employment it had authored. That would be contrary to the intention of the Employment Act.
13. The court could only interfere where there was breach of the process only with a view to setting the process right. In the instant case the Petitioners had not alleged that the relevant bodies being the County Assembly Service Board and the County Assembly had been moved and had failed to take action. Neither had it been shown that the Petitioners filed a complaint with the 2^nd Respondent which it had failed to act on.
14. The courts could order the 2^nd Respondent, the County Assembly Service Board and the County Assembly, all of whom had the obligation to supervise and investigate the 1^st Respondent to perform their role of investigation. However, the Petitioners had not prayed for those orders. They had not enjoined the employer of the 1^st Respondent who had failed to take disciplinary action against him and although the 2^nd Respondent had been joined, no prayers were sought against it.

Petition dismissed, each party to bear its costs