Whether an employer could send an employee on compulsory leave where it was not provided for in the employers human resource policies and procedures

Brief facts

The claimant was the secretary of the Independent Electoral and Boundaries Commission (the 7^th respondent). Being aggrieved by the decision of the 7^th respondent to send him on compulsory leave, the claimant filed Petition No 29 of 2018 and thereafter Cause No 617 of 2019 following his suspension and eventual termination from employment. The two suits were consolidated. The claimant averred that the 1^st, 3^rd and 4^th respondents purported to sit as a plenary session of the 7^th respondent and resolved to send him on compulsory leave. The claimant claimed that he was not informed in writing of the meeting and neither was he afforded an opportunity to defend the decision to send him on compulsory leave. 

The claimant averred that the internal audit report relied upon did not contain adverse findings against him and that the respondents violated provisions of various statutes and of the Constitution of Kenya, 2010 (Constitution). Further, the claimant averred that compulsory leave was not provided for in the HR and administrative policies and procedures manual. The claimant stated that his suspension was unlawful and irregular. Furthermore, the claimant averred that the procedure undertaken before termination of his employment was an abrogation of his constitutional rights to human dignity, privacy, access to information, fair labour practices and fair administrative action 

The claimant sought for among others; a declaration that the purported internal audit report relied upon as basis for the notice to show cause which culminated in the claimant's termination was a nullity; a declaration that his termination from employment was unlawful; and general damages for breach of his constitutional rights.

Issues

1. Whether an employer could send an employee on compulsory leave where it was not provided for in the employers human resource and administrative policies and procedures manual.
2. Whether failure to give an employee notice of a meeting and an opportunity to be heard in the meeting in which a decision to send the employee on compulsory leave was made, was a violation of the employee's constitutional right to a fair hearing.

Held

1. On Friday April 6, 2018, the 1^st, 3^rd and 4^th respondents purportedly sitting as a plenary session of the 7^th respondent resolved to send the claimant on compulsory leave. The claimant was however not informed in writing of the meeting. He was neither afforded an opportunity to defend the decision to send him on compulsory leave nor defend himself. The internal audit report relied upon by the respondents to make those moves against the claimant contained no adverse findings against the claimant or anyone else for that matter as to justify sending the claimant on compulsory leave. 
2. The respondents violated various provisions of a number of statutes and the Constitution. The creature known as compulsory leave was not provided for in the 7^th respondents HR and administrative policies and procedures manual and was thus unavailable to the respondents in the quest to remove the claimant from employment. Under the HR and administrative policies and procedures manual and section 41 of the Employment Act, an employee was entitled to a fair hearing and it was apparent the claimant was not accorded that right. 
3. The claimant had sought a slew of reliefs a majority of which could not be granted. For instance, the claimant was not entitled to general damages for breach of his constitutional rights, nor was he entitled to payment for the balance of his term. In addition, the claimant was not entitled to back pay by virtue of annual increments due but not paid for twenty (20) months being Kshs 1,441,440.