• Upon resuming work after unexplained suspension, he was stopped by the watchman who stated he had been instructed not to allow him into the office.
• Firm says they sent him show-cause letter to explain why disciplinary action shouldn't be taken, alleges he never responded and that he deserted work.
Image: FILE
The Modern Coast bus service has been ordered to compensate a conductor Sh132,000 for unlawful dismissal.
Last week, the Mombasa Labour court ordered Modern Coast to pay Mastisa Chang'oka Ndeme six months' salary, a month's salary in lieu of notice and refund surcharges.
Ndeme was employed by Modern Coast as a conductor from 2011 to January 5, 2015, earning a monthly salary of Sh12,000.
He told the court that sometime in June 2014, he supervised the cleaning of one Modern Coast bus at a car wash in Nairobi, then left to prepare himself at the booking office. For a while, the bus was not brought to the office for boarding as is usual.
"Upon asking the loaders why the bus had not arrived for boarding, I was told that it had been involved in an accident. I went to the car wash and confirmed that indeed the bus had been involved in an accident, causing a crack on the windscreen and damaging its lights," he said.
A report was made at the Mombasa office and a decision made that the driver who caused the accident would be surcharged. However, upon receiving his salary for the month of July 2014, Ndeme said he realised that he had been surcharged, thus reducing his salary to Sh5,566.
"The deductions continued for seven months until January 2015. The claimant’s inquiries about the total amount of the surcharge went unanswered," he told the court.
Ndeme said he was sent on an unexplained two weeks off in mid-January 2015. Upon resuming work early in February 2015, the claimant was stopped at the gate by the watchman who stated that he had been instructed not to allow him into the office.
"I spoke to a Mr Khalid who referred me to the general manager who in turn told me to go home and wait to be called," he said.
When he was not called back for months, he concluded that his employment had been terminated and, therefore, he filed a case against Modern Coast for unlawful and unfair dismissal.
In a written response, Modern Coast denied terminating Ndeme's employment and instead claimed that he had deserted duty from January 17, 2015.
The company claimed that Ndeme negligently and deliberately allowed an unqualified driver who was not their employee to drive their bus, contrary to company policies. This, they said, led to the accident and subsequent damage to the bus "exposing them to great loss".
Modern Coast stated that a report was lodged at its headquarters in Mombasa and a repairs estimate undertaken to establish the cost of repairs.
The company claimed to have informed Ndeme of the extent of the damage and was further advised that his salary would be deducted to cover the damage as a result of his negligence to meet the cost of repair "which he willfully accepted".
They claimed that he performed his duties poorly and negligently and was constantly late for work or absent. "Despite [this], they decided not to terminate his employment but regularly warned him verbally."
Modern Coast said Ndeme was given a show-cause letter requiring him to demonstrate why disciplinary action should not be taken against him following results of internal investigations that negatively implicated him. They added that the letter also required the claimant to attend a disciplinary hearing on January 20, 2015.
"Upon receipt of the show cause letter, he left its premises and had never shown up again to date. He neither responded to the show-cause letter nor appeared for the disciplinary proceedings as required," the company said.
Modern Coast claimed that after unfruitful attempts to reach Ndeme, it wrote to the County Labour Office in Mombasa, notifying them that the claimant had deserted his employment. The company produced copies of the letters in court.
Ndeme denied having received this letter and disowned the receipt signature on the face of the letter.
Justice Linnet Ndol ruled the letters were "a choreography of falsification of documents to suit the respondent’s case".
Modern Coast did appear in court to defend their argument nor did they call any witnesses to explain the circumstances under which the letter was served on the claimant.
"The court was, however, neither impressed nor convinced. This is more so because the maker of these contradictory letters was not called to authenticate them," Justice Ndol said.
As a result, she said, the respondent’s defence that Ndeme deserted duty collapses and the court finds that his employment was unlawfully and unfairly terminated.
"The claimant is therefore entitled to compensation. I award the claimant six months’ salary (Sh72,888) and one month in lieu of notice, Sh12,148," she ruled.
Ndolo also awarded Ndeme a refund of the surcharges totalling Sh46,074 noting that the company failed to follow legal procedure.
Edited by R.Wamochie