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6. The Claimant contends that on 13th October 2017, the Respondent issued the Grievant with a warning letter regarding alleged infractions including: abetting fraud at the ofice; refusal to wear uniform in the Respondent’s functions; and unlawful disclosure of the Respondent’s secrets to its competitors. The Claimant contends that when the Grievant received the letter, she sought its input on the matter. In reaction, it (the Claimant) wrote to the Respondent on the issue on 31st October 2017. 7. The Claimant avers that when the Respondent received its letter of 31st October 2017, it issued the Grievant with a notice to show cause dated 10th November 2017. In the show cause, the Respondent allegedly accused the Grievant of escalating the issue between them to a third party. The Respondent allegedly accused the Grievant of having assumed the role of an activist at the workplace instead of focusing on her role as an employee. 8. The Claimant avers that the Grievant responded to the Respondent’s letter on 15th November 2017. In reaction, the Respondent issued her with its letter of 22nd December 2017 terminating her services. 9. The Claimant contends that the Respondent appeared to have been infuriated by the response from the Grievant in her letter of 15th November 2017. It contends that all that the Grievant did was to simply state that she consulted it (the Claimant) over the dispute in line with her right under the Employment Act to consult her trade union on workplace grievances. As such, there was no reason for the Respondent to have accused her of escalating what it described as an internal issue to a third party. 10. It is in this context that the Claimant contends that the Grievant was punished for her decision to handle her workplace issues with its assistance. And hence the contention that she was victimized for her association with a trade union. 11. The Claimant contends that the Respondent failed to uphold the procedural strictures under section 41 of the Employment Act whilst processing the release of the Grievant from employment. It accuses the Respondent of having failed to afiord the Grievant a hearing before her contract was terminated. 12. The Claimant accuses the Respondent of having underpaid the Grievant over the years. As a result, it seeks for an order compelling the Respondent to pay the Grievant the shortfall in her salary. In addition, the Claimant prays for: reinstatement of the Grievant to her position within the Respondent’s establishment; compensation to the Grievant for unfair termination of her contract; certificate of service; and costs of the case. Respondent’s Case 13. In response, the Respondent denies that it terminated the services of the Grievant because of her membership to a trade union. The Respondent contends that the Grievant was involved in a series of malpractices at the workplace which necessitated her release from employment. 14. It accuses the Grievant of arrogance and insubordination at the workplace. The Respondent contends that because of the misconduct by the Grievant, she was issued with a letter dated 13th October 2017 which served as a warning. 15. The Respondent avers that instead of the Grievant heeding the warning, she escalated the issue to a third party (the Claimant) prompting the Claimant’s letter of 31st October 2017. In the Respondent’s view, the letter of 31st October 2017 essentially emboldened the Grievant to disregard the warning she had been issued with on 13th October 2017. 16. The Respondent contends that in view of these developments, it issued the Grievant with a notice to show cause on 10th November 2017. The Respondent avers that instead of the Grievant showing https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2243/eng@2024-09-19 2

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remorse, she wrote back on 15th November 2017 with a degree of casualness. It is as a result of this that a decision was taken to relieve her of her employment. 17. The Respondent denies that it underpaid the Grievant as alleged. It contends that the Grievant was earning more than what the Minimum General Wage Order in force at the time stipulated. Issues for Determination 18. After evaluating the pleadings and evidence on record, I consider the following to be the issues that arise for determination:a. Whether the contract of service between the Grievant and the Respondent was lawfully terminated. b. Whether the Grievant was underpaid during the currency of her employment to the Respondent. c. Whether the Grievant is entitled to the reliefs that she seeks through the Statement of Claim. Analysis 19. The answer to the first question turns on the interpretation that is given to the events that were triggered by the Respondent’s letter to the Grievant dated 13th October 2017. By this letter, the Respondent warned the Grievant not to engage in conduct which it considered inimical to their relation. The Respondent pointed out that the Grievant had involved herself in undesirable behaviour including: abetting fraud at the ofice; refusing to wear stafi uniform during oficial events; and disclosing ofice secrets to the Respondent’s competitors. The Respondent informed the Grievant that it will not hesitate to terminate her contract if she did not desist from the impugned behaviour. 20. It would appear that the Grievant shared the Respondent’s letter with the Claimant. Feeling dutybound to protect its member’s rights, the Claimant wrote to the Respondent on 31st October 2017 accusing the latter of a plethora of matters including: unfair victimization and intimidation of the Grievant; pursing the Grievant on matters which had been closed; and failure to internalize its obligations to employees under the law. 21. The Respondent was evidently not amused by this turn of events. As a result, it issued the Grievant with a notice to show cause dated 10th November 2017. The notice reads in part as follows:‘’It is surprising that you introduced another party to this internal issue and also misled them that the society is frustrating you because you have joined a trade union. The board is concerned with the turn of events on your side where you have shifted from being an employee to an activist which needs an explanation from you.’’ 22. The Grievant responded to the Respondent’s show cause letter through her letter of 15th November 2017. She contended that she was aware that the Respondent and the Claimant had a recognition agreement which entitled the latter to represent its members (including her) in workplace disputes. She further contended that she was aware that the law entitled her to be represented by a shop fioor representative of the union in workplace disputes. As such, she could not understand why the Respondent had christened her decision to consult the Claimant on her workplace grievances as sharing an internal issue with a third party. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2243/eng@2024-09-19 3

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23. This response did not sit well with the Respondent. The Respondent contended that it (the response) was casual. It considered the response as a display of arrogance by the Grievant. As a result, it (the Respondent) issued the Grievant with a letter of termination of her contract. 24. The Respondent’s reaction to the response by the Grievant was evidently exaggerated. There is nothing in the letter by the Grievant that was casual or arrogant. She was simply stating what she was entitled to under the law. She was entitled to involve her trade union in any trade dispute between her and the Respondent. To look at the letter in any other way is to miss the point. 25. Whilst the Respondent denies that it punished the Grievant because of her association with the trade union, the contents of its letter dated 10th November 2017 and the oral evidence by its witness speak to the contrary. The excerpt from the said letter quoted earlier in this decision demonstrates that the Respondent was incensed by the decision by the Grievant to involve the Claimant in what it termed as an internal issue. Yet, it (the Respondent) was aware that the Claimant was the legitimate trade union representing the Grievant in her workplace matters. 26. The reaction by the Respondent to the decision by the Grievant to involve her trade union in her workplace issues was uncalled for in view of the express constitutional and statutory provisions that entitle her to trade union representation. It was therefore unnecessary and contrary to the law for the Respondent to have purported to require the Grievant to show cause why she involved the Claimant in the workplace issues that were under consideration. 27. That the association of the Grievant with the Claimant was the main reason for the Respondent’s displeasure with her is also self-evident from the oral testimony of its witness. During cross examination, the said witness expressed himself on the issue as follows:‘’We did not terminate the Grievant because she became an activist. Instead of serving the Sacco, she committed her time to union activities. The Grievant was our employee. She was not an employee of the union. Yet, she committed her time to union activities. She did not draw a line between her union activities and her role as employee.’’ 28. This evidence speaks volumes about the unspoken mind of the Respondent as it took the decision to end the Grievant’s contract of service. The Respondent was evidently fed-up with the latter’s involvement in trade union activities. 29. Despite the Respondent accusing the Grievant of over involvement in trade union activities, it did not provide evidence to back its claims. There was no evidence to suggest that the Grievant had committed more time than was reasonable to trade union activities. 30. Section 46 of the Employment Act lists some of the matters for which an employer may not terminate an employee’s contract of service. For example, an employer is not entitled to dismiss an employee from employment because of the latter’s membership of or participation in the activities of a trade union. Thus, the Respondent’s decision to punish the Grievant because of her association with the Claimant was unfair. 31. The evidence on record shows that after the Grievant responded to the Respondent’s show cause, the Respondent issued her with its letter terminating her contract of service. The Grievant contends that she was not ofiered a chance to defend herself at a disciplinary hearing. 32. During cross examination, the Respondent’s witness conceded that there was no disciplinary hearing held in respect of the Grievant. However, he insisted that she was given a hearing. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2243/eng@2024-09-19 4

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33. Section 4 (3) of the Fair Administrative Action Act provides, inter alia, as follows:‘’Where an administrative action is likely to adversely afiect the rights or fundamental freedoms of any person, the administrator shall give the person afiected by the decision an opportunity to be heard and to make representations in that regard.’’ Emphasis added by underlining. 34. On the other hand, section 41 of the Employment Act provides as follows:a. Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop fioor union representative of his choice present during this explanation. b. Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.’’ Emphasis added by underlining. 35. These two statutes have often been read together when considering the propriety of an employer’s decision against an employee during a disciplinary process. The two contemplate a hearing of the employee before a decision is rendered against him. It is implausible to construe the phrases, ‘’opportunity to be heard’’ in section 4(3) of the Fair Administrative Action Act and ‘’hear and consider any representations which the employee… may make’’ in section 41(2) of the Employment Act as suggesting consideration of the employee’s written memorandum alone. 36. The Respondent has sought to rely on the Court of Appeal decision of Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR to argue that the Grievant was not entitled to an oral hearing before her contract was terminated. However, I do not think that this decision is applicable to this dispute. 37. First, it is noteworthy that the aforesaid decision considered the right of the Claimant to be heard in the context of provisions in the Code of Conduct of the Respondent, the Kenya Revenue Authority. The court did not consider the provisions of the Employment Act because the case was not premised on them. 38. Second, it is noteworthy that the case was in respect of termination of a contract of service which happened on 9th March 2001. At this time, neither the current Employment Act nor the Fair Administrative Action Act which anchor the right of an employee to be heard during a disciplinary process had been enacted. 39. From the evidence on record, it is apparent that the Respondent terminated the services of the Grievant without afiording her the opportunity to be heard. This was procedurally unfair. It is so declared. 40. The next issue for consideration is whether the Respondent underpaid the Grievant. At paragraph 37 of the Statement of Claim, the Claimant contends that the Respondent used to pay the Grievant Kshs 13,851.00 per month instead of the statutory minimum of Kshs 15,519.95. However, no evidence was tendered to support this contention. 41. In her own documents produced in evidence, the Grievant demonstrates that her salary was much higher than the Kshs 13,851.00 that she alleges in her pleadings. For instance, her July 2016 pay slip https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2243/eng@2024-09-19 5

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at page 25 of her bundle of exhibits suggests that her salary was Kshs 16,067.00, more than what she says was the statutory minimum. In her oral testimony in court, she conceded that she used to earn between Kshs 17,000 and Kshs 18,000. Having regard to the foregoing, I arrive at the conclusion that she was not underpaid. 42. The next question to determine is whether the Grievant is entitled to the reliefs sought in the Statement of Claim. I have already declared the decision to terminate her contract as unfair. 43. Section 49 of the Employment Act empowers the court to grant an aggrieved employee compensation for unfair termination of his contract of service. Having found that the Respondent’s decision to terminate the services of the Grievant was unfair, it follows that the Grievant is entitled to compensation for the unfair termination of her contract. 44. The history of the relation between the parties suggests that they may have had some challenges. However, the main reason why the Respondent terminated the Grievant’s contract was her fiirtation with the Claimant. This was grossly unjust. As such, I award the grievant compensation that is equivalent to her gross salary for ten months. 45. The evidence on record shows that the Grievant was earning Kshs 16,067.00 as at July 2016. Therefore, the compensatory award aforesaid works out to Kshs 16,067.00 x 10 = Kshs 160,670.00. 46. The Grievant has prayed for a Certificate of Service. Every departing employee is entitled to this document in terms of section 51 of the Employment Act. As such, I order the Respondent to issue the Grievant with the Certificate. 47. The Claimant has prayed for reinstatement of the Grievant to her position within the Respondent’s establishment. However, under section 12 (3) (Vii) of the Employment and Labour Relations Court Act, this remedy can only be issued within three years of dismissal from employment. In the instant dispute, the Grievant was relieved of her employment more than three years prior to the date of this decision. As such, the relief is not available to her. 48. I note that the proceedings were not commenced by an Advocate of the High Court. As such, they do not attract costs under the Advocates Act. In the premises, the Claimant is entitled to recover only the actual disbursements that were incurred in mounting the claim. It is so ordered. Summary of the Award 49. Having regard to the evidence on record, I arrive at the following findings and make the attendant orders:a. The Grievant was not underpaid during the term of her employment with the Respondent. b. The Respondent unfairly terminated the services of the Grievant. c. The Respondent is ordered to pay the Grievant compensation for the unfair termination of her contract in the sum of Kshs 167,670.00. d. The Respondent is ordered to issue the Grievant with a Certificate of Service. e. The plea that the Respondent reinstates the Grievant is declined. f. The Claimant is permitted to recover the actual expenses incurred in mounting and prosecuting this claim but not costs as stipulated under the Advocates Act. DATED, SIGNED AND DELIVERED ON THE 19TH DAY OF SEPTEMBER, 2024 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2243/eng@2024-09-19 6

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B. O. M. MANANI JUDGE In the presence of: ...............................for the Claimant .............................for the Respondent Order In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2243/eng@2024-09-19 7

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