Balancing scales of justice in staff dismissal disputes

Mr Muchemi has proved that he had a valid legal and valid claim to the trademark ‘Vitale V”. FILE PHOTO | SHUTTERSTOCK

Earlier this month, a court ordered Safaricom to pay Sh2.3million compensation to a former senior employee, Michael Karanja Wanguru, who is alleged to have been irregularly sacked over alleged involvement in graft.

This recent judgment spurred a heated debate on the issue of service of summons. The debate emanated from a labour issue where Michael alleges, he was dismissed unlawfully and so sued for unlawful termination. His case was that his employment was terminated before he was given an opportunity to defend himself

Section 49 of the Employment Act, 2007 makes provisions for appropriate remedies for wrongful dismissal or unfair termination and the wages that they should be paid. It was Michael’s case that he was not heard before his services were terminated and consequently, the court found that he had been unfairly terminated.

Article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

It was therefore not enough for Michael to simply allege unfair termination. He had a responsibility to lay before the court the circumstances leading to his termination and prove the ingredients of unfair termination as was held in Omar Ndaro Zuma v Modern Coast Express [2019].

In this case, Michael was able to prove his case that the Respondent had not followed the laid down procedure and that his services were unfairly terminated.

The issue at hand, however, is not whether or not Michael was unlawfully terminated. The issue is whether Safaricom, in this case, was accorded the right to defend itself.

Paragraph 3 of the judgement states as follows; “The Respondent did not enter an appearance or file a defence. However, there is no affidavit of service on record. The foregoing notwithstanding, the suit proceeded undefended.”

An affidavit of service is the document that the court of law relies on to satisfy itself that proper service of summons or pleadings has been effected. Rule 11(6) of the Employment and Labour Relations Court (Procedure) Rules 2016, provides that an affidavit of service shall be accompanied by evidence of acknowledgement of receipt of the served document signed by the recipient.

Rule 11(7) states further that; if for any reason the signature of the recipient cannot be secured, the process server shall state so in the affidavit of service.” This affidavit of service is non-existent in this case.

Section 47(5) of the Employment Act provides that for any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.

We have already looked at Article 50 which provides for a fair hearing. The employee’s right to a fair hearing does not trump the employer’s right to a fair hearing. Both parties should have been accorded a fair opportunity to be heard.

Article 47 (1) of the Constitution provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

In Ridge v Baldin, the court was of the view that; “the principle of fairness has an important place in the administration of justice and is also the good ground upon which courts ordinarily exercise discretion to intervene and quash the decisions of a tribunal or subordinate court made in violations of the right to a fair hearing and due process.”

The court itself acknowledged that there was no affidavit of service on record, which also implies that the Safaricom was neither served with the summons nor was it served with the pleadings.

The Supreme Court of India in Sangram Singh vs Election Tribunal, stated that: “There must be ever-present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”

Justice Njagi, as he then was in Fidelity Commercial Bank Ltd Vs. Owen Amos Ndun’gu & Another explained that; where summons to enter appearance has been served, and there is default in the entry of appearance, the ex parte judgment entered in default is regular.

But where ex parte judgment sought to be set aside is obtained either because there was no proper service or any service at all of the summons to enter an appearance, such judgment is irregular, and the affected defendant is entitled to have it set aside as of right.

Having critically analysed this case and looked at the relevant case law and the laws applicable, my conclusion is that as a matter of right, the aggrieved party who is Safaricom can make an application to the court for the judgment to be set aside if it so wishes.

The writer runs Masanyangila and Associates Advocates

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