Humphrey Atura Aberi v National Director, SOS Children’s Home [2018] KEELRC 1382 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 1839 OF 2013

HUMPHREY ATURA ABERI..............................................................CLAIMANT

- VERSUS -

THE NATIONAL DIRECTOR, SOS CHILDREN’S HOME.......RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 18. 11. 2013 through Ongicho-Ongicho & Company Advocates. The claimant prayed for judgment against the respondent for:

a) Terminal dues of Kshs. 13, 301, 484. 49 being Kshs. 5, 584. 16  for 5 days worked in August 2013; prorate leave for 10 months Kshs.27, 920. 00; reasonable notice of 12 months at Kshs. 33, 505. 00 Kshs. 402, 060. 00; maximum 12 months compensation Kshs. 33, 505. 00; compensation for loss of employment until retirement being 31 years at Kshs. 33, 505. 00 per month making Kshs. 12, 463, 860. 00.

b) Interest on (a) above at Court rates from 05. 08. 2013 until payment in full.

c) A certificate of service.

d) The respondent to pay costs of the suit.

The respondent filed the memorandum of response on 26. 05. 2014 through the Federation of Kenya Employers. The respondent prayed that the claimant’s suit be disallowed with costs to the respondent.

The claimant was employed by the respondent on 10. 11. 2008 and dismissed on 05. 08. 2013. The reason for termination was that the claimant irregularly initiated a manual lab test whose consequence was that the patient attended to did not pay the requisite laboratory test charges. The test was with respect to a regular client to the respondent’s hospital meaning that such a customer was not exempt from paying for laboratory tests. The claimant confirmed that the patient in issue did not pay as was expected when he was attended to on 10. 07. 2013. The claimant had been given a show-cause letter. He had replied to the letter and he attended the disciplinary hearing as scheduled.

In cross-examination the claimant confirmed that the request that the patient was not to pay the prescribed fees was not from the doctor or in the doctor’s absence, from the clinician and as was prescribed in the respondent’s policy. The claimant confirmed that he was not a clinician or a doctor so that he had allowed the patient to take laboratory tests without paying and contrary to policy on waiver of such payments. The amount the patient failed to pay was Kshs.1, 800. 00.

The Court returns that the respondent complied with section 41 of the Employment Act, 2007 on notice and hearing. Further the Court returns that the respondent had a valid reason to dismiss the claimant on account of breaching the policy on waiver of payment for laboratory services at the respondent’s establishment. The reason was valid as per section 43 of the Act. The termination was not unfair in procedure and substance.

The other issue for determination is whether the claimant is entitled to the remedies as prayed for. The termination not being unfair, the 12 months compensation and notice pay are not available. The claimant has not attributed a reason to the respondent occasioning diminished capacity to earn or engage gainfully in alternative activities after the termination and the claim for pay for 31 years for lost future earnings will fail.

The respondent will pay the 5 days worked and not paid Kshs. 7, 334. 10; 10 months prorate leave Kshs.30, 803. 50 making Kshs.38, 137. 60; and the respondent to deliver a certificate of service. Each party will bear own costs of the suit.

In conclusion judgment is entered for the claimant against the respondent for:

a) Payment of Kshs. 38, 137. 60 by 01. 09. 2018 failing interest to be payable at court rate from the date of the suit till full payment.

b) The respondent to deliver a certificate of service by 01. 09. 2018 as per section 51 of the Employment Act, 2007.

Signed, dated and delivered in court at Nairobi this Friday 27th July, 2018.

BYRAM ONGAYA

JUDGE