1.The Claimant in this case, Emmanuel Fresco filed a Memorandum of Claim dated 19th September 2017, which he later amended on 14th September 2018. He states the issues in dispute as:
2.The 1st Respondent, Camusat Kenya Limited, filed a Memorandum of Defence dated 17th November 2017 and amended on 2nd March 2018.The 2nd Respondent, Camusat Maurice Limited, filed a Reply dated 17th June 2021.
3.At the trial, the Claimant testified on his own behalf while the 1st Respondent called three witnesses; Petterson Githinji, the Human Resource Manager; Priscilla Balgobin-Bhoyrul, an independent Barrister based in Mauritius hired by the Respondents to preside over the disciplinary proceedings and Sebastian Martin, the Vice President, Africa and Indian Ocean. The 2nd Respondent called Robert Njogu, the Regional Human Resource Manager for East Africa and Indian Ocean.
The Claimant’s Case
4.The Claimant states that the 1st and 2nd Respondents are related companies with the 2nd Respondent being the parent company of the 1st Respondent. The Claimant adds that he was employed by both the 1st and 2nd Respondents vide separate contracts by which he received two different salaries from both entities.
5.The Claimant avers that he was employed by the 1st Respondent vide a contract of employment dated 11th November 2008. He adds that vide a subsequent contract commencing on 1st July 2014, he became the Regional Managing Director, East Africa in charge of operations within the Region.
6.The Claimant claims to have been simultaneously employed by the 2nd Respondent vide an unlimited term employment contract dated 2nd July 2014.
7.According to the Claimant, he served with diligence and dedication as the Regional Managing Director, East Africa until the termination of his employment on 2nd June 2017.
8.On 12th May 2017, the Claimant was served with a letter suspending him from duty and asking him to appear before a Disciplinary Committee on 29th May 2017, to answer to the following allegations:
9.By his letter dated 12th May 2017, the Claimant acknowledged the letter inviting him for a disciplinary hearing on 29th May 2017, which he duly attended.
10.At the disciplinary hearing, the Claimant rebutted the charges preferred against him, which he termed as false, malicious and outrageous. He claims that the sale of his personal motor vehicle, Toyota Landcruiser HDJ101-Registration No. KAW 500E to Camusat Kenya was duly approved by the Board of Directors in France in February 2014. He adds that the value of the vehicle was ascertained by a reputable Kenyan valuation company and that the sale price was lower than the valuation.
11.The Claimant avers that the Finance and Administration Director for Africa, Ms. Beatriz Meijide was among the staff who approved the sale of the subject motor vehicle to Camusat Kenya.
12.According to the Claimant, the disciplinary process he was subjected to, was a charade with a premediated and predetermined outcome. He claims that a new Managing Director had been hired even before the disciplinary hearing.
13.The Claimant accuses the Disciplinary Committee of bias and states that his representations were not considered. He further states that he was not issued with minutes of the disciplinary proceedings.
14.By letter dated 2nd June 2017 from the 1st Respondent, the Claimant’s employment was terminated. The reasons for termination were given as follows:
15.The Claimant’s case is that the termination of his employment was in breach of the Employment Act and his contract of employment. He maintains that there was no valid reason for the termination and due process was not followed.
16.In addition, the Claimant states that his emoluments were not properly computed and his local holidays were not paid.
17.The Claimant therefore seeks the following remedies:
The Respondents’ Case
18.In its Memorandum of Defence dated 17th November 2017 and amended on 2nd March 2018, the 1st Respondent states that its Directors received reports that there were issues of mismanagement and misuse of funds occasioned by the Claimant that warranted investigation.
19.Subsequently, the Directors posted Ms. Beatriz Meijide to the Company in the position of CAFO, with the mandate to streamline the Company’s financial operations and prevent loss.
20.The 1st Respondent further states that on 24th April 2017, its Directors were informed that the Claimant had been involved in initiating a false claim with the Directorate of Immigration and Registration of Persons, Ministry of Interior and Coordination of National Government, against Ms. Beatriz Meijide.
21.The 1st Respondent alludes to some anonymous letters containing allegations of mistreatment of Kenyan workers, which according to the 1st Respondent, were intended to incite the immigration authorities to deport Ms. Beatriz Meijide.
22.The 1st Respondent avers that an internal investigation identified two employees as the most probable authors of the anonymous letters. A third employee is said to have confessed being part of the scheme which was orchestrated by the Claimant.
23.The 1st Respondent accuses the Claimant of executing a personal attack against Ms. Meijide ,with the aim of impeding investigations into the financial circumstances of the 1st Respondent, during the Claimant’s tenure as Regional Managing Director.
24.The Claimant was suspended by letter dated 1st May 2017, pending further investigations into his conduct. On 12th May 2017, he was invited to attend a disciplinary hearing. The 1st Respondent maintains that the disciplinary hearing was conducted in accordance with applicable laws.
25.The 1st Respondent states that in due recognition of the senior position held by the Claimant, he was provided with safeguards above the requirements stipulated by the applicable laws, including having an external and independent referee present at the disciplinary hearing to make a determination as to the Claimant’s liability in respect of the allegations brought against him.
26.The 1st Respondent claims that the Claimant admitted at the disciplinary hearing that he had failed to obtain approval in respect of the purchase price of motor vehicle registration number KAW 500E, meaning that the purchase was not approved by the Board.
27.The 1st Respondent points to another discrepancy, being that the motor vehicle was not transferred to the Company, despite the purchase price having been paid in full.
28.The 1st Respondent’s case is that the disciplinary hearing duly and properly determined that the Claimant had knowingly made a false and malicious declaration to the Directorate of Immigration regarding the CAFO of the Company and had induced his subordinates to record false statements against the CAFO with the intention of prejudicing her.
29.The 1st Respondent asserts that the Claimant was afforded a reasonable opportunity to be heard and to controvert the evidence brought against him, before the decision to terminate his employment was made.
30.In the alternative and without prejudice to the foregoing, the 1st Respondent avers that letters dated 1st January 2016 and 12th May 2017 were issued to the Claimant by Camusat (Mauritius) Limited, a separate limited liability entity, pursuant to a contract between the Claimant and the Mauritius Company.
31.In its Reply dated 17th June 2021, the 2nd Respondent admits having employed the Claimant in Mauritius on a contract of service under Mauritius law.
32.The 2nd Respondent states that the Claimant entered into a foreign contract of service with the 1st Respondent, a separate legal entity registered in Kenya under Kenyan law.
33.The 2nd Respondent avers that its management was made aware of the Claimant’s failure to obtain approval in respect of the purchase of motor vehicle registration number KAW 500E. The 2nd Respondent adds that the Claimant made no attempts to transfer the vehicle to the 1st Respondent.
34.The 2nd Respondent avers that after investigations, the Claimant was issued with a notice to show cause on 12th May 2017, after which he was summoned to a disciplinary meeting on 29th May 2017.
35.The 2nd Respondent states that during the disciplinary hearing, the Claimant admitted that he had failed to obtain approval in respect of the purchase of motor vehicle registration number KAW 500E.
36.The 2nd Respondent denies that there was a breach of the Claimant’s rights under Kenyan law. According to the 2nd Respondent, due process was followed in dismissing the Claimant.
37.The 2nd Respondent challenges the jurisdiction of this Court and states that articles 11 and 12 of the Claimant’s contract of employment expressly provided that the applicable law would be the law of Mauritius.
Findings and Determination
38.From the parties’ pleadings and the evidence adduced before the Court, the following issues emerge for determination:
Jurisdiction and Applicable Law
39.At the interlocutory stage, the issue of jurisdiction and applicable law was raised by the 2nd Respondent, by way of a notice of Preliminary Objection dated 21st March 2019. The substance of the Objection was that any dispute arising from the contract of employment in issue would be decided by the courts in Mauritius in accordance with Mauritius law and this Court therefore lacks jurisdiction to hear and determine the Claimant’s claim as against the 2nd Respondent.
40.In his ruling delivered on 22nd November 2019, Makau J drew the following conclusions:
41.From the foregoing, it is evident that the twin issues of jurisdiction and applicable law, which the 2nd Respondent sought to resuscitate in final submissions, were exhaustively determined by my brother Judge and are therefore spent.
Nexus Between the 1st and 2nd Respondents
42.The parties chose to skirt around the issue of the relationship between the 1st and 2nd Respondents. On his part, the Claimant pursued the line that he held two jobs; one with the 1st Respondent and another with the 2nd Respondent.
43.The 1st and 2nd Respondents attempted to take cover under the principle of corporate identity. Their responses to the Claimant’s claim were however strikingly similar. It was also not lost on the Court that the two Respondents flashed a similar brand name. Further, the two contracts of employment whose termination constitutes the subject matter of this dispute were issued to the Claimant within a span of one (1) day.
44.In the premises, it is safe to conclude that the Claimant’s engagement by the 1st and 2nd Respondents constituted a blended and indivisible employment relationship and no one contract of employment could survive termination of the other.
45.In this regard, I am persuaded by the holding by Rika J in Phillip Ateng Oguk & 27 others v Westmont Power (Kenya) Limited & another  eKLR that the existence of various legal entities at the workplace should not be used to obfuscate employment rights and obligations. The Judge went further to hold that such entities should be viewed as economic units, rather than legally separate bodies.
46.On 2nd June 2017, the 1st Respondent wrote to the Claimant as follows:
47.The first question to ask under this head is whether the Respondents had a valid reason for terminating the Claimant’s employment. The test to be applied is contained in Section 43 of the Employment Act, which provides as follows:
48.The termination letter accuses the Claimant of two counts; first, orchestrating, inducing and conspiring to make a false and malicious declaration to the Kenyan immigration authorities in respect of the CAFO of Camusat Africa, Ms Beatriz Meijide and second, selling his personal motor vehicle to his employer at USD 30,000 without the express approval of his immediate superior.
49.A review of the record of the disciplinary proceedings against the Claimant reveals that the Claimant was in fact cleared of the charge relating to the sale of his personal motor vehicle to his employer. The relevant section of the record states the following:
50.By relying on a charge of which the Claimant had been cleared, to terminate his employment, the Respondents in effect ignored the findings of a disciplinary process set up by themselves. I do not think an employer has the latitude to set aside the findings of a disciplinary process, without a valid reason, which must be explained. I say so because it is during the disciplinary process when the employee gets a chance to rebut the accusations levelled against them.
51.By their action therefore, the Respondents trashed the findings of the disciplinary process and went ahead to find the Claimant culpable without complying with the mandatory procedural fairness requirements set out under Section 41 of the Employment Act.
52.Regarding the charge of orchestrating false accusations against Ms Beatriz Meijide, the Disciplinary Committee relied on anonymous letters, which were allegedly authored by employees, at the Claimant’s instigation. On this charge, the Disciplinary Committee believed the word of Getachew Beyene who claimed to have been given the letters to deliver to the Immigration Department.
53.Regarding this charge, the disciplinary record tersely states:
54.This Court is aware that the standard of proof imposed on an employer under Section 43 of the Employment Act is on a balance of probability and a valid reason is one that would lead a reasonable employer to terminate employment.
55.According to the record of the disciplinary proceedings, Beyene did not deliver the letters to the Immigration Department nor did he bring them to the attention of Ms Meijide or any other officer of the Company. In fact, the record reveals that the letters were discovered in Beyene’s bag, by the Financial Controller.
56.Apart from Beyene’s uncorroborated word, there was no evidence adduced to prove that the letters emanated from the Claimant. In light of the fact that the letters were themselves anonymous, the Disciplinary Committee ought to have required the Respondents to provide independent evidence linking the Claimant to them.
57.Further, Beyene’s failure to bring the letters to the attention of his superiors, prior to their discovery by the Financial Controller, dented his credibility as a witness. Significantly, the Respondents did not avail Beyene as a witness before the Court.
58.On the whole, I find and hold that the Respondents failed to establish a valid reason for terminating the Claimant’s employment as set out in Section 43 of the Employment Act. For the reasons already stated, I also find that the disciplinary process fell short of the requirements set by Section 41 of the Act.
59.I therefore award the Claimant four (4) months’ salary in compensation for unlawful and unfair termination of employment. In arriving at this award, I have considered the contractual period served by the Claimant as well as the Respondent’s culpability in the termination transaction.
60.I further award the Claimant three (3) months’ salary in lieu of notice as provided in the employment contract dated 1st July 2014.
61.No basis was established for the claims for annual leave equivalent, service pay and pay for balance of contract which therefore fail and are dismissed.
62.The claim for breach of fundamental rights under the Constitution was not proved.
63.Finally, I enter judgment in favour of the Claimant as against the 1st Respondent and 2nd Respondent severally as follows:
64.These amounts will be paid net of statutory deductions and will attract interest at court rates from the date of judgment until payment in full.
65.The 1st and 2nd Respondents will meet the costs of the case.