11.The claimant called all the five grievants as its witnesses. Mr. Japheth Too testified as CW1 who stated that he was employed on 15th February 2006 by the respondent as a Lab Assistant earning Kshs. 5400 per month. The contract was never reduced into writing and he was also not paid House Allowance, medical allowance or leave travelling allowance. He was a member of the claimant union to which he paid subscriptions directly from 12th July 2017 when he joined to June 2018. He paid the subscription that way to avoid victimization.
12.On 27th March 2018, he was served with a letter terminating his employment on ground of redundancy. The letter was not copied to the Labour officer but the BOM and the Bursar. He was not paid any terminal dues after the termination despite his long service of over 12 years nor was he issued with a certificate of service. As at the time of the separation, his salary was Kshs.12, 420 per month.
13.He testified that the letter referred to a Circular from the Ministry but according to him the Circular did not talk of redundancy. The matter was referred to conciliation before the Labour office Kericho but he was not paid anything. The termination has caused loss on him therefore he prays for the reliefs set out in his suit.
14.On cross examination, he admitted that he was given one month notice by the respondent before the termination.
15.Mrs Edith Chebet testified as CW2 and stated that she was employed by the respondent on 1st November 2011 as a store Keeper earning Kshs 7500 per month. No other allowances were paid to him and the contract was also not reduced into writing. Her services were also terminated by a letter dated 27th March 2018 on account of redundancy. No terminal benefits were paid to her upon termination. Therefore she prayed for the reliefs sought in her suit.
16.On cross examination, she stated that she joined the claimant union on 10th July 2017. She admitted to receiving one month notice before the termination.
17.Mr. Alphonce Too testified as CW3 and stated that he was employed by the respondent on 12th May 2009 as a security officer but he was never issued with any appointment letter. His duties included manning of the school compound and the students’ security. His monthly salary was Kahs. 4300 without any allowances. He was a union member paying his subscriptions through check off system.
18.He testified further that on 17th November 2019, as he was reporting to work, the Deputy Principal told him to go back home and report to the office on 19th November, 2019 to explain why he was absent from work on 16th November 2019. When he reported on 19th November, 2019, the deputy principal told him to go home until he was called back but he did not receive any call. He contended that he was on night duty on the 16th November 2019 doing patrol and the deputy principal never called him via telephone.
19.He denied the allegation in the defence that on 30th July 2018 he was found asleep while on duty. He denied also that he was served with a show cause letter for the said conduct. He further denied that he left the main gate open on 26th October 2018 and an intruder entered the school. He contended that on the said night they were three guards, he was guarding the lower gate, another guard was manning the main gate while the last was guarding the teachers, dormitories and administration area.
20.He further stated that the police arrested the intruder and only interrogated the guard at the main gate. He further stated that no document has been filed to show that he was found guilty for the intrusion by the armed stranger.
21.He admitted that he was not issued with any suspension or termination letter by the respondent but maintained that his services were terminated and lost income. He was also not issued with a certificate of service. As at the time of the termination he was earning Kshs. 8834 per month.
22.He contended that he was not paid terminal dues after the separation despite the matter having gone to the labour officer for conciliation. Therefore he prayed for the reliefs sought in his suit.
23.On cross examination, he denied that he served a resignation letter. He admitted that there was a lapse while on duty when an intruder came to the school through the main gate. He maintained that he was manning the lower gate on the said night. He reiterated that on the material date he was manning the lower gate but he was supposed to remain in one place but patrol the area also.
24.He further reiterated that on 19th November 2019 he was told by the deputy principal to go away and wait until he was called back but he was never received any call. He maintained that he was never heard but admitted that he never wrote any protest letter thereafter.
25.Mr. Edwin Kipyegon testified as CW4 and stated that he was employed by the respondent on 5th March 2013 as a security officer for a monthly salary of Kshs 5000 with no allowances. He was also not issued with any appointment letter. he was a member of union and his subscription was paid through check off.
26.He testified that on 17th October2019, the deputy principal found with 42 Chapatis while on duty and told him to report to the office the following day. When he went to the office he found the principal and the deputy but they just told him to go away and never to return. He had not been told to come to the officer with a fellow employee. He was also not served with any show cause letter on 7th December 2019, he wrote a resignation letter so as to be paid his dues.
27.He testified that the chapatis found in his possession was for his daughter’s birth day party the following day. He maintained that he was not heard before the dismissal. He also denied that he left the door of a dormitory open and contended that the theft occurred in a different dormitory from the one he was guarding. However, he admitted that he heard that students’ property was stolen from the dormitory.
28.He testified that he reported the matter to his trade union and a dispute was reported for conciliation but even then, he was paid nothing. He was also not issued with certificate of service. He contended that he served for 7 years and his salary at the time his exit was Kshs. 7234 per month. Therefore he prayed for the reliefs sought in his suit.
29.On cross examination, he admitted that he he wrote a resignation letter.
30.Finally, Mrs Rosaline Langat testified as CW5 and she told that court that she was employed by the respondent as cook in May 2012. Her monthly salary was Kshs. 4000 but no house allowance or any other allowance was paid to her nor was she given any appointment letter. The salary was later increased to kshs. 7000. She was a member of union and paid subscription through check off.
31.After working for 7 years, Ms Winnie Cherotich was employed to help her but after one month she started to differ with her for refused to do assigned duties. On 23rd June 2019, they differed until the Cateress came in but still Winnie refused to do her duties. The matter was escalated to the principal and Winnie apologised and promised to do her duties.
32.CW5 further testified that on 9th July 2019, she fell down and suffered injuries and thereafter she suffered from cerebral malaria. After treatment, the doctor recommended that she be allocated light duties but Winnie insisted that everyone will do her usual duties which led to fresh differences. The Cateress referred the matter to the Principal and she was suspended vide the letter dated 2nd August 2019. The suspension was for indefinite period and she was not paid any salary. The letter directed her to bring a report from church, chief and the union.
33.He further testified that he was summoned to appear before the Board but when he went with a union official, the principal and the board chased them away saying that the union was a stranger to the school. The matter was referred for conciliation but the employer refused to appear thrice.
34.On cross examination, she admitted that she was given a suspension letter and that she had misunderstanding with her colleague. She also admitted that she did not file any report from the church or police or chief as directed by the principal. She relied on the letter on record as proof that the employer was summoned to the conciliation but failed to attend.
35.The respondent did not avail its witnesses but it relied on the written statement by its witness Mr. Charles Ochengo as its evidence. The witness is the Principal of the school and claimant conceded to the nature of testimony tendered.
36.In brief the witness admitted that all the grievants were employees of the respondent. As regards Mr. Japheth Too and Edith Chebet, she testified that they were retrenched following a Circular number MoE.HQs3/13/3 from the ministry of Education. In his view, the the termination was lawful since it gave the grievants one month notice vide the letter dated 27th March 2018. Finally, he contended that the grievants were not members of the union as at the time of thir retrenchment and they only learned of their membership through the letter from the union dated 27th August 2018.
37.As regards the other three grievants, the witness stated that they were to blame for the termination of their services. He stated that Mr. Alphonce Too performed his duties of security guard negligently including on 5th July 2018 when he left the gate open at dawn and a man wielding a machete entered the school threatening to harm the students before police rescued them; on 30th July 2018 when he was found asleep in the Laboratory at dawn; on 26th October 2018 he left the gate he was manning open and 120 boys left the school at dawn; in September 2019 he left he was found sleeping in the lower staffroom at dawn and when he was asked to explain the matter he absconded never to report back again.
38.The witness further stated that Mr. Edwin Kipyegon likewise performed his security duties negligently in that on 22nd july 2019 he reported to work at 7.40 pm instead of 6,30 pm; again he failed to lock lower dormitories’ gate and some students gained entry, broke into others boxes and stole their property; on 6th October 2019 he failed to report to work in the evening as scheduled and failed to notify his seniors; and that he was found selling chapatis to students at night and he was directed to see the deputy principal the following morning but he disappeared until 7th November 2019 when he left a resignation letter with the School Secretary. The resignation was made two days after he was served with a show cause letter demanding a response within 14 days.
39.Finally, the witness stated that Mrs Rosalia Langat sharply disagreed with her fellow cook Ms Winnie Cherotich on 23rd June and quarrelled and they were warned after being summoned in the Principal’s office. They two repeated the same quarrels on 2nd August 2019 threatening to fight. Before then Rosalia had absented herself from work and said she had been admitted in hospital for treatment of an illness which she said had been inflicted on her by Winnie. She further said that a pastor who prayed for her told her that winnie had paid a preacher kshs, 1000 to pray for her to fall sick, which allegation Winnie denied. The two were suspended and referred to the pastor for arbitration and report the alleged threats to security agency and local authority and report back with a written report that they had complied with the instructions given but they disappeared alleging that they have been sacked.
40.The Claimants did not file any submissions after the hearing but the respondent filed. The submissions by the respondent merely repeats the foregoing explanations and urges the court not to interfere with separations. The court was also urged not to award the claimants the reliefs sought in the respective suits.
Issues for determination and analysis
41.I have carefully considered the pleadings, evidence and submissions and found no dispute that the claimants were employed by the respondent. The issues for determination are:a.Whether the redundancy of the two grievants in Cause No.E013 of 2021 was unlawful and unfair.b.Whether the three grievants in Cause No.E011 & 12 of 2021 voluntarily resigned or they were constructively dismissed by the respondent.c.Whether the Claimant is entitled to the orders sought.
Redundancy of the grievants in Cause E013 of 2021
42.Redundancy has been defined under section 2 of the Employment Act as:
43.From the foregoing definition, it is clear that when it comes to termination on account of redundancy, the reason for the termination cannot be blamed on the employee. The reason must relate to an involuntary happening or cause that is beyond the employer’s control or which is inevitable in relation the employer’s operational requirements. In this case, the reason was cited in the termination notice dated 27thMarch 2018 as follows:
44.The Circular is dated 19th October 2017 and relevant paragraph is number 5.0 which stated as follows: -
45.The above paragraph cited qualification and capacity to pay as the factors for the school boards to consider when hiring non-teaching staff. The termination notice to the two grievants laid off herein did not state which of the two factors set out in the above Circular was used as the ground for the redundancy. The grievants had served as Lab Assistant and Assistant Storekeeper respectively. The respondent did not also tender any evidence to show that there were other persons serving in the said positions nor has any evidence been given to show that the positions were abolished. Consequently, the court finds that the respondent has failed to prove that the reason for the termination was valid and fair to justify termination of services of the grievants for no fault.
46.Besides, the court finds that the procedure followed in terminating the employment on account of redundancy was contrary to the mandatory procedure set out under section 40 of the employment Act. The said requires that the employer must serve at least one month notice to the employee or his trade union (if a member), and the area labour officer. In this case, the area labour officer was never served and therefore a crucial procedural step, of consultation, was skipped.
47.While discussing the purpose of serving a prior statutory notices of redundancy, the Court of Appeal in the Kenya Airways Limited v. Aviation & Allied Workers Kenya & 3 Others  eKLR stated as follows:
48.The respondent further failed to pay the grievants their terminal benefits that accrued from the said redundancy including severance pay, salary in lieu of notice and any other benefits as provided by the said section 40 of the Act. Consequently, the court finds that the respondent has failed to prove that the termination of the grievants’ employment was done in accordance with a fair procedure.
49.Having found that the employer has failed to prove that the termination was grounded on a valid and fair reason related to the employer’s operational requirements, and that a fair procedure was followed, the court finds that the redundancy of the two grievants in Cause No. E013 of 2021 was unlawful and unfair.
Voluntary resignation or unfair dismissal of the other three grievants
50.Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee who alleges that he was so dismissed while the employer must justify the reason for the termination. The employer has a further burden of proving that a fair procedure was followed under section 45 of the Act. The question that begs for answer herein is whether the claimant has proved that the grievants were dismissed by the employer.
51.The claimant’s case is that the three grievants were verbally suspended verbally for alleged misconduct, in manner that they deemed to amount to constructive dismissal. However the employer contends that the Mr. Edwin Kipyegon and Alphonce Too performed their security duties negligently, absconded duty and engaged selling food stuffs to students and when they were summoned to the office to explain themselves they disappeared completely save for the former who served a resignation letter dated 7th November 2019.
52.Mr. Edwin Kipyegon admitted that he was found with 42 pieces of chapatis while on duty at night and that he was directed to go to the office the following day. Likewise, Mr. Alphonce Too admitted that on 17th November 2019, the deputy principal accused him of absence from work on 16th November 2019 and told him to go to the office the following deny to give an explanation. The two allege that they went to the office as directed but they were just told to go back home and wait until they were called back. The principal has denied that allegation and stated that the grievants never went to the office as directed by the deputy principal but just disappeared. The grievants have not produced any evidence, either documentary or eye witness to prove that, indeed they went to the office as directed.
53.Mrs Rosalia Langat, on the other hand, was involved in repeated quarrel with her fellow cook and also absented herself from work. When she reported back she alleged that she fell ill and was admitted in hospital. She attributed her predicament on her fellow cook Ms Winnie who allegedly paid a pastor to cast a spell on her. In fear that the ladies might one day injure one another with knives or other means in the kitchen, the two were given a suspension letters to sort the spiritual matters before the pastor and also report the alleged threats to the security agency and local authority. They were then required to come back with report form the pastor and the security agency showing that they complied. Rosalia never returned to the office with or without a report that she had complied with the instructions given in the suspension letter.
54.Having considered the evidence on record, the court finds that the claimant has not proved on a balance of probability that the grievants’ employment was terminated by the employer. On the contrary the court satisfied that the evidence supports a finding that it is the three grievants who voluntarily resigned from the employment to evade disciplinary process at the shop floor. The resignation for Rosalia Langat and Alphonce is implied from their conduct while that of Edwin Kipyegon is expressly contained in his resignation letter dated 7th December,2019.