Ex-Kemri employee wins battle for compensation

By WAHOME THUKU

Mr Abel Marcel Okoth Okello was employed by the Kenya Medical Research Institute (Kemri) on August 15, 2008 as a Space and Safety Manager. His six-year contract was thus to expire on August 14, 2014, but was renewable annually. His annual salary was Sh778,872.

The contract was first renewed on November 25, 2009. He was now to perform duties of Space and Safety Manager in a Base-Safety Project, with a monthly gross salary of Sh108,381.

On December 17, 2009 Okoth was appointed Deputy Operations Chief (DCO) within Base operations project in Kisumu with effect from October 15, 2009. He was to get Sh20,500 in addition to his monthly pay.

He reported directly to the Operations Branch Chief.

On May 6, 2010, Okoth was suspended from work on claims that he had been putting Kemri’s power generator to personal use without authority of his supervisor and that he had been lying to the security officer.

He was asked to show cause in writing, why he should not be subjected to disciplinary process.

Okoth responded to the letter.

More accusations against him were made by one Phineahs Machiro,  an employee of the US Embassy’s Regional Security Office.

On May 24, 2010 Okoth attended a Disciplinary Committee meeting.

Two days later Kemri lifted the suspension by the Disciplinary Committee and Okoth was told to resume his position as DCO.

In June 2010, Okoth proceeded for paternity leave.

However, on July 2, he received a letter dated June 23, 2010, terminating his contract of employment.

The letter signed by Dr John Vulule, the director, Center for Global Health Research, began by pointing out that according to the contract, the continuance of his employment was pegged on the duration of the study and funding.

Exit interview

The letter stated that the contract provided for a voluntary exit by either party giving one month notice or paying one month salary in lieu of notice.

It added: “Therefore and in conformity with these provisions, Kemri/CDC Research Public Health Collaboration hereby terminates your employment contract. This termination is effective immediately. However, you will be paid one month salary in lieu of notice.”

The salary was to be paid together with any other benefits upon successful clearance. An exit interview clearance form was attached to the letter which Okoth was required to fill in and return to Kemri.

On October 24, 2011, Okoth filed a suit at the Industrial Court in Nairobi. Through his lawyer Mr Elvis Obok, he accused Kemri of unfairly and unlawfully terminating his contract of employment without following due process.

Lawyer Obok argued that no reasons were given for the termination and Okoth was not given an opportunity to be heard. 

Okoth claimed Sh6.3 million as the gross salary for the remaining 49 months of his contract. Another Sh241,956 as gratuity.

He asked the court to put into account promotions and salary increments that would have been given to him in the remaining part of the contract. Further he asked for severance pay and other statutory benefits, costs of the case and interests.

Kemri maintained they had followed due process in terminating the contract and had adequately compensated Okoth in accordance with his contract and the relevant law.

On May 25, 2012 both parties agreed before Lady Justice Maureen Onyango that the case be heard on November 7, 2012. However, on that day the lawyer for Kemri did not turn up in court. Only Mr Okoth and his lawyer attended the hearing.

Kemri’s lawyer had not communicated to the court and so the judge allowed the case to proceed without him. Mr Okoth then testified on his predicaments.

At the end of the proceedings, the court had two issues to determine, one whether the termination of the contract was lawful and two whether he was entitled to the orders he had sought.

The judge first cited Section 41(1) of the Employment Act which provided that, 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 floor union representative of his choice present during this explanation.

No reasons given

Section 41(2) states that an employer shall, before terminating the employment of an employee or summarily dismissing an employee…hear and consider any presentation which the employee may, on the grounds of misconduct or poor performance make and the person is any, chosen by the employee.

Looking at the termination letter Lady Justice Onyango easily concluded that there was no reasons given for the termination and no legal procedure had been followed.

“The termination is, therefore, unfair for failure to give valid and fair reason and also for failure to comply with fair procedure,” she held.

The judge noted that Okoth had just been reinstated after undergoing a disciplinary hearing and there was no reason given for his termination.

“I am persuaded to agree with the claimant that the termination of his contract of employment was actuated by bad faith,” the judge said.

Justice Onyango noted that the suspension was without a salary. She said this in itself was unlawful since the contract only provided for interdiction on half salary.

The judge then looked at the Employment Act again. It provides for maximum compensation of up to 12 month-salary for unfair termination.

Looking at the case of Okoth, the judge said, “In the circumstances I find that he is entitled to 12 month salary as compensation.” On that the judge awarded him Sh1,560,972.

Okoth’s contract also provided for payment of gratuity at the rate of 31 per cent of the basis salary for every month worked.

The judge held that he was entitled to the gratuity since the termination was unfair. Further Kemri had not contested his claim since they never went for the hearing. So the court awarded him the Sh241,956.

The court, however, noted that Okoth had not adduced any evidence to quantify any additional awards and that plea was rejected. Equally he was not entitled to severance pay since under Section 40 of the Employment Act that is awarded to an employee who is declared redundant, which was not the case for him.

The court, however, awarded him costs of the case with no interest. The conclusion was that the termination was unfair and he was awarded a total of Sh1,802,928 as compensation.