• Labour judge erred by failing to justify award of three-month compensation
• Was accused of absenteeism, drinking alcohol on duty and taking bribes
Image: FILE
A former court clerk who was dismissed for gross misconduct has lost his compensation.
Francis Gitau sued the Judiciary and Registrar of the High Court claiming he was unfairly dismissed in 2011.
The Employment and Labour relations court awarded him a three-month gross salary in a judgement delivered in 2017.
The Judiciary, however, appealed the decision.
Judges Roselyne Nambuye, Daniel Musinga and Kathurima M’inoti said the Labour judge erred by failing to justify the award of the three-month compensation.
They said under the Employment Act, the court is entitled to award a maximum of 12 months gross monthly salary, but in making the award, it is supposed to take into account the factors such as the wishes of the employee, the length of service and the circumstances under which the termination took place.
“The learned judge did not advert to any of the above factors, thus making the appellant’s contention that the award was arbitrary, difficult to ignore. Ultimately, we have come to the conclusion that this appeal has merit. We accordingly allow the same, set aside the award and decree of the Employment and Labour Relations Court dated July 20, 2011, and substitute therefore an order dismissing Cause No. 508 of 2014”, the judges ruled.
Gitau said he was employed by the Judiciary as a clerical officer on temporary terms on November 2, 1979, and the employment confirmed as permanent and pensionable on May 2, 1990.
Through a letter dated June 4, 2009, he was dismissed from employment for desertion, with effect from January 16, 2009.
On December 7, 2009, he sued against his dismissal.
Through a letter dated May 18, 2010, the Judiciary advised Gitau that they had considered his first appeal against dismissal on account of gross misconduct and found it without merit.
They advised him of his right to lodge a second appeal.
It was noted that Gitau was dismissed on grounds of desertion, but the letter of May 18 suggested that the appellant had considered his appeal against dismissal on grounds of misconduct.
However, having noticed the anomaly, on January 4, 2011, the Judiciary wrote to Gitau and notified him that there was a mistake and that his appeal was against dismissal for desertion and not for gross misconduct as stated in the letter.
He then filed an application for judicial review in the High Court and on May 19, 2011, obtained an order of certification quashing the decision of the Judiciary to dismiss him from employment and another of prohibition restraining them from taking other measures to implement his dismissal.
In compliance with the court order, Gitau was reinstated on August 10, 2011, and all outstanding dues to him paid. However, through a letter dated the next day [August 11], the Judiciary suspended him from employment on grounds of serious breach of conduct by a judicial officer, involving allegations of consuming alcohol during working hours.
Other grounds were demanding and receiving payment from litigants to purportedly induce magistrates to decide in their favour, failure to take official instructions and to carry out assigned tasks, being disrespectful and using harsh and abusive language to his superiors, absenteeism and desertion of duty.
He was invited to show cause, within 21 days, why disciplinary action should not be taken against him.
Gitau in reply contended that the grounds for his suspension were the same as those dealt with in the judicial review application.