The Employment and Labour Relations Court has faulted an engineering company for allegedly dismissing one of its site engineers via a text message without giving him a fair hearing.
Justice Bernard Manani found that Concordia Building & Civil Engineering Co Ltd failed to comply with the legal process outlined in Section 41 of the Employment Act in its separation with Michael Njogu four years ago.
"As the employer, the respondent was under an obligation to afford the claimant a chance to be heard before his contract could be terminated. Absent compliance with Section 41 of the Employment Act, the process that resulted in the termination of the claimant’s employment was unlawful. It is so declared," said Justice Manani.
Section 41 establishes a three-step legal safeguard: first, a written notice of allegations; second, a face-to-face hearing with an opportunity to respond; and third, the right to union or colleague representation. All of these safeguards were absent in Mr Njogu's case.
Mr Njogu claimed that a company officer had sent him a short text message on September 3, 2020, informing him that his contract had been terminated.
However, the company denied that its management had sent the employee a text message to terminate his services, contending that it was unaware of the message on which the claimant relied to prove that his contract had been terminated by text message.
Mr Njogu stated that, at the time, he had been deployed to Garissa as a site engineer on one of the company's projects, having been transferred there from the Mitubiri Sanitary Landfill project in Murang'a County one month earlier.
He stated that the Garissa project was due to run for 18 months, starting in August 2020. However, the company denied deploying him to the project in Garissa, as he had asserted.
He informed the court that the company had not provided reasons for its decision and had not allowed him to be heard before rendering the contested decision. Accordingly, he argued that the decision was unlawful.
During the hearing, the company's witness claimed that the claimant had been relieved of his duties after the Mitubiri client requested his removal from the site for alleged defiance.
However, the court noted that there was no evidence that the company had taken the employee through a disciplinary process in accordance with Section 41 of the Employment Act, in order to substantiate the allegations of defiance levelled against him.
This section requires employers to notify and hold a hearing for an employee before terminating their employment due to misconduct, poor performance or physical incapacity.
The record showed that, three weeks after receiving the phone text message, the claimant’s lawyers wrote to the company alleging that his contract had been unfairly terminated.
"There is no evidence that the respondent responded to the said letter to contest its contents. As such, the court believes the claimant’s testimony that the respondent terminated his services on September 3, 2020," said Justice Manani.
The court also found that there was no evidence to support the company's claim that the contract ended naturally upon reaching its completion date. The court also said that this was contradictory to the firm's other claim of removal due to alleged defiance.
Mr Njogu was awarded damages totalling Sh1 million under various heads, including compensation for unfair termination of his contract and unpaid salaries.
