Unfair termination of employment
10.Section 35(1)(c) of the Employment Act, 2007 envisages written notice of termination of employment while section 41 of the Act requires the employer to afford the employee an opportunity to be heard before taking the decision to terminate the contract on the grounds of misconduct, performance or physical incapacity.
Neglect of duties
11.The 1st Respondent issued a show-cause notice dated 2 October 2020 to the Claimant, an advocate in its employ at the material time. The allegation was a failure to discharge duties (failure to attend Court, failure to file submissions, failure to review, submit and process judgment on time, and filing misleading court attendance reports).
12.The show-cause requested the Claimant to submit a written explanation within 3 days ahead of a disciplinary hearing on 9 October 2020.
13.Upon receipt of the show-cause the Claimant responded to the allegations through email on 5 October 2020 and also requested that the disciplinary hearing be conducted through Zoom because she was constrained financially due to a pay cut precipitated by the COVID-19 health pandemic, lack of sufficient leave days and because she was taking care of young children.
14.The 1st Respondent replied to the Claimant on 6 October 2020, indicating that a physical disciplinary hearing was necessary. The Claimant was advised to make arrangements to attend the hearing.
15.On 7 October 2020, the Claimant sent an email to the 1st Respondent stating that due to a medical condition, she would not be able to attend the disciplinary hearing physically. The Claimant sent a copy of a sick-sheet later to the 1st Respondent.
Failure to attend disciplinary hearing
16.The Claimant, therefore, did not attend the hearing and on 30 October 2020, the 1st Respondent issued a termination letter.
17.The question that begs, in the circumstances, is whether the 1st Respondent afforded the Claimant a reasonable opportunity to be heard.
18.The 1st Respondent alerted the Claimant of the allegations to confront and requested her to make a written response which she did.
19.Thereafter, she was invited TO a physical hearing but she did not attend. The Claimant sought a postponement of the physical hearing and gave the reasons for seeking the postponement.
20.The 1st Respondent declined the request but gave no reasons. While the Court cannot speculate or condemn the 1st Respondent for not assigning any reasons, it can address its mind as to whether the reasons given by the Claimant for seeking a postponement were fair and reasonable.
21.At the material time, the world of work had undergone and was still undergoing fundamental changes necessitated by the COVID-19 health pandemic. The government had placed the country in a lockdown with minimal travel allowed.
22.The world of work had changed overnight and many employers including the judiciary adopted a virtual workspace. Many employees were working from home, utilising virtual work platforms.
23.The request for a Zoom hearing was therefore, reasonable and fair.
24.The Claimant also furnished the 1st Respondent with a sick-sheet from the Jaramogi Referral & Teaching Hospital indicating that she was attended to at the hospital on 7 October 2020, and recommending against long distance travel.
25.Nothing was placed before the Court to dispute the genuineness of the medical note. If it was a fit for purpose sick-sheet, the Court cannot speculate.
26.The 1st Respondent did not suggest that conceding to the request of the Claimant would have prejudiced it or that there was urgency in the disciplinary hearing.
27.The opportunity to be heard in disciplinary cases is not just a form or process. The employee should be afforded sufficient and adequate facilities and opportunity to make representations in the presence of a colleague, or trade union representative if applicable.
28.The 1st Respondent did not afford the Claimant a sufficient opportunity to put her case across rendering the process procedurally unfair.
29.Pursuant to sections 43 and 45 of the Employment Act, the 1st Respondent had the burden of proving the validity and fairness of the reasons for dismissing the Claimant.
Failure to attend disciplinary hearing
30.The immediate cause for the summary dismissal of the Claimant was failure or refusal to attend a disciplinary hearing.
31.The Court has already adverted to the procedural fairness of the Claimant’s dismissal. The reasons therein are closely intertwined with the substantive fairness of the dismissal.
32.The Claimant did not in substance decline to attend the disciplinary hearing. She sought to be indulged for a virtual hearing (reasonable accommodation).
33.The reasons the Claimant gave for seeking an indulgence were leave days’ deduction during COVID-19, financial constraints due to a 30% pay cut, attending to two young children, and advice from a doctor against long-distance travel.
34.The Respondent as an employer did not demonstrate that these were unreasonable requests or that there was an urgency in having the disciplinary hearing on the scheduled date which outweighed the need to accommodate the Claimant’s requests.
Neglect of duties
35.The Claimant’s troubles started when one of the Respondent's client’s properties were attached. The Claimant had failed to attend Court.
36.The judgment of the Magistrates Court speaks for itself.
37.The Claimant failed to attend the defence hearing. She did not file submissions. The explanations about not being able to trace the files and the failures of the Clerk are not convincing.
38.The neglect to attend dutifully to the Court case in question was a valid and fair reason for disciplinary action.
39.The 1st Respondent, in the circumstances, had valid and fair reasons to dismiss the Claimant.
40.Nevertheless, the Court, therefore finds that the summary dismissal of the Claimant was procedurally unfair and also not in accord with justice and equity as contemplated by section 45(4)((b) of the Employment Act.
Compensation and pay in lieu of notice
41.The Claimant prayed to be awarded maximum compensation and the equivalent of a 1-month salary in lieu of notice.
42.The Claimant had served the 1st Respondent for about 4 months and in consideration of this factor, the Court is of the equivalent of 1-month salary as compensation and 7 days’ salary in lieu of notice in terms of clause 2. C of the contract would be appropriate (gross salary was Kshs 143,000/- and the formula of Kshs 143,000 divided by 22 has been used to compute daily salary for purposes of notice pay).
Conclusion and Orders
47.Flowing from the above, the Court finds and declares that the summary dismissal of the Claimant was procedurally unfair and she is awarded:i.Compensation Kshs 143,000/-ii.Pay in lieu of notice Kshs 38,500/-Total Kshs 181,500/-
48.The head of claim in relation to the pension scheme is dismissed.
49.The Claimant has partially succeeded and she is awarded costs on ¾ scale.