Reprieve as unfairly sacked cleaner gets 12 months’ pay

By Wahome Thuku

Nakuru, Kenya: Philice Matendechere was employed by Lions Primary School in Nakuru County as a cleaner on July 1, 1995. She was also assigned by the school’s board of trustees to assist in serving lunch in the school. But something happened to Ms Matendechere that led to her sacking in January last year.

On May 21, this year, Matendechere, now 63, filed a claim at the Industrial Court in Nakuru seeking a declaration that the termination of her employment was unlawful according to the the Employment Act.

Further, she asked for 16 months’ salary (Sh141,000) as damages for the sacking. She also asked for Sh17,626, being two months’ salary in lieu of notice of the dismissal. Matendechere also asked the court for costs of the suit, interest and any other reliefs it could grant her.

On June 20, 2013, the school’s board of trustees filed its defence asking that the suit be dismissed and that the claimant be ordered to pay costs.

The case went before Nakuru Industrial Court judge Byram Ongaya and was heard on September 24 and October 4, this year.

Matendechere told the court that on July 15, 2011, she had concluded her duties on the school premises when she was directed to go to the premises of her supervisor, a Mr Juma, to do some cleaning.

As she did the cleaning, she slipped and fell on the slippery floor and sustained some injuries. She was admitted in Nakuru Provincial Hospital and given sick leave until January 25, 2012, when her doctor recommended that she could resume work but be assigned light duties. But unknown to her, the school board had already decided to terminate her services while she was on sick leave.

When she reported to work, her supervisor, Mr Juma, declined to assign her light duties.

She told the court that a manager called Dodhia advised her not to report for duty any more because the board chairman, a Mr Amu, had directed that she would not be paid.

On the same day, she was called by the head teacher Phanuel Imbusi, and instructed to go back home. Matendechere went home and that was her last day in the school. She was never recalled to work.

She testified that her final one-month salary of Sh8,813.00 was paid in December, 2011. She told the court that she was 63 years old this year. Her identification card indicates that she was born in 1950.

Matendechere said she had recovered and though she used crutches, she was still able to work as recommended by her doctor.

Unfit to work

The board of trustees argued that Matendechere had already attained the age of 60, hence was already officially retired and the provisions of the Employment Act could not apply in her case. They also claimed that she was medically unfit to work.

Imbusi testified on behalf of the school. He told the court that he did not write a letter of retirement to Matendechere. He said he never terminated her employment and did not know why she never reported on duty because Juma, the supervisor, knew about her case.

The judge identified only two issues for determination, since all the other issues were not in dispute. Was Matendechere’s employment unfairly terminated? Was she entitled to the remedies she had asked for?

“It is the respondent’s submission that the claimant was not employable because she had attained the mandatory retirement age of 60 years as per the respondent’s alleged provision of the law. The respondent has further submitted that the claimant was medically unfit to work.

“Further, it was submitted for the respondent that the Employment Act, 2007, did not apply in cases whereby the employee had attained the mandatory retirement age,” the judge pointed out.

The judge also considered submissions by Matendechere’s lawyer that her employment was constructively and illegally terminated without notice and valid reason.

“The claimant’s evidence is that the respondent’s managers and her supervisors informed her to go home as she would not be retained in employment. 

“The court finds that the respondent’s submission that the claimant was not employable on account of medical unfitness and because she had attained a mandatory retirement age as ungrounded,” the court held.

The judge pointed out that first, Section 41 of the Employment Act, 2007 prescribes the procedure to be followed where the employee is to be terminated on the grounds of ill-health.

“Secondly, there is no generally prescribed constitutional or statutory retirement age,” the judge added. “In absence of such prescription, the court holds that retirement age is a term of the contract of employment to be agreed between the parties.”

But in the case of Matendechere, there was no such agreement as to when her contract would end or anything about retirement age. The court, therefore, concluded that her sacking on grounds of retirement age was unfounded and was an invalid reason for termination. 

Orally terminated

“There is no reason to doubt the claimant’s account that she was orally terminated. The court finds that the termination was unfair because it was without due process and a valid reason,” the judge said.

So was she entitled to the remedies? The judge ruled that Matendechere was entitled to the declaration that the termination of her employment was unfair. She was entitled to 12 months’ pay amounting to Sh105,756 for the unfair termination. Further, the court ruled that she was entitled to Sh8,813 as payment in lieu of one month’s termination notice.

On Friday last week, the court ordered the school to pay the former cleaner Sh114,569 by January 1, 2014.

The money would then accrue interest at the court rates until full payment was made. The school was also ordered to pay her costs of the suit.

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