‘Unfair’ dismissal of nurse returns to haunt Pandya Memorial Hospital

An employer must have a good and valid reason for dismissing an employee even if he gives him or her notice for termination of employment.

That is the lesson that Pandya Memorial Hospital learned last week.

The Mombasa based hospital hired one Peter Maroko Omondi on January 19, 2012 as a nurse on a two-year contract.

However on February 9 last year, the hospital terminated his contract before its expiry over alleged misconduct and insubordination.

The hospital offered to pay him one month salary in lieu of notice. On October 7, Omondi sued the hospital claiming wrongful dismissal and refusal to pay dues.

The case went before Judge Stephen Radido, who heard it on May 21 and July 8 this year.

Omondi claimed he was on leave from end of December 2012 when Pandya Memorial Hospital Nurse Manager called and told him to report to the Human Resource Manager.

He found two officers who questioned him about a letter that was in circulation. He claimed that soon after he was issued with a dismissal letter, he was supposed to resume duty after the leave on February 9, 2013.

He told the court that he was in the Human Resources Manager’s office for only five minutes and that he was not taken through a disciplinary process or asked to call a colleague, as required under the law.

He said he was questioned about a list that was circulating in the institution but was not given further details when he requested for it.

The hospital called its Human Resource Manager, Henry Muchiri, and Director of Nursing Mariam Swaleh, as witnesses.

Mr Muchiri said he summoned Mr Omondi to his office after receiving a complaint of his rudeness and using abusive language.

The complaint had been made by the Administrator of Coast General Hospital.

Muchiri said they attempted to have discussion with him in the presence of Ms Swaleh but he was arrogant and could not listen.

He said the aim of calling Omondi was not for disciplinary purposes. They also discussed with him a letter written by nurses raising several grievances on salaries and allowances.

Muchiri said at some point Omondi walked out and later returned demanding a dismissal letter. By demanding the termination letter, he was undermining authority, he said.

So Muchiri granted him his wish and terminated his contract.

Muchiri said the matter went before the Board of the Respondent and a decision was taken to dismiss him. He described it as a case of constructive dismissal.

Swaleh said the Coast Provincial Director of Medical Services raised concerns that one of the Pandya Hospital nurses was inciting colleagues at the Coast General Hospital to go on strike.

Swaleh said the hospital had no problem working with employees involved in union activities and that Omondi was dismissed due to his character and insubordination. She, however, said she could not remember the reasons given in the dismissal letter.

UNION MEMBER

Omondi said he was a member of the Kenya National Union of Nurses and that he did not incite his colleagues to go on strike though he was aware they had written a letter to the hospital administration.

He denied having dared Muchiri to sack him.

He said the dismissal letter did not provide any reasons for the sacking and that Muchiri had told him no reasons would be given. He admitted that he was paid one month salary in lieu of notice.

At the time of dismissal he was earning a gross salary of Sh26,500. He claimed Sh291,500, being the remuneration he would have earned had he served the full tenure of the contract.

The judge noted that the Human Resource manager had admitted that no disciplinary hearing was held on the basis of Omondi’s behaviour and conduct.

“Mr Muchiri was the head of human resources and must be taken as a professional human resource practitioner. Was it proper for Mr Muchiri to, in the heat of things concede to the demand by the claimant to give him a termination letter? The court would have expected Mr Muchiri to allow things to cool down and thereafter commence the disciplinary process,” Industrial Court Judge Radido said before ruling that the dismissal was procedurally unfair.

The judge added: “Prior to the Employment Act, 2007 an employer could dismiss an employee for a bad reason or no reason at all, provided it was on notice. That has now changed. An employer is under an obligation to prove the existence of good and valid reasons for dismissal even if he gives notice.”

VALID REASONS

Justice Radido said it was no longer open to an employer to terminate the services of an employee without cause by giving of notice or payment in lieu of notice.

“Any provision in an employment contract which provides for termination on notice or pay in lieu of notice without giving reasons is unlawful and invalid. All terminations of employment must be on reasons which an employer is required to not only prove, but prove as valid and fair reasons. Ordinary employees now have security of tenure against unfair terminations,” he said.

The judge said Omondi’s dismissal letter did not give reasons. He ruled that the dismissal was not in accord with justice and equity and thus was substantively unfair.

The court awarded Omondi Sh106,000 as the equivalent of four -month gross wages as compensation. It rejected his claim for lost income but ordered the hospital to pay him cost of the suit.