Court orders firm to pay ex-manager Sh980,000, rules phone sack unfair

The dismissal of a health and safety manager via a telephone call was procedurally unfair, a court has ruled.

Justice Agnes Nzei found that Zhongiao Third Highway Engineering EA Company Limited unlawfully terminated Dickson Alubala, who had served as a manager since June 2021.

She ordered the company to pay Alubala nearly Sh1 million in compensation and unpaid salaries.

The Employment and Labour Relations Court heard that Alubala was called by a colleague, the site engineer, who told him the company had terminated his services.

By that time, the respondent had, “without notice, withheld payments for four months worked (May, June, July and August 2023)” and owed further Sh30,000 from the month of April as Alubala had only received part payment.

He told the court he had served the respondent dedicatedly without any disciplinary action.

“The claimant went to the respondent’s office to find out how a colleague could just call him over termination of his employment and subsequently engaged a lawyer who issued a demand letter,” court documents show.

“That it was after this that the claimant was issued with a letter dated August 20, 2023, terminating his employment, which the claimant was persuaded to sign.“

Alubala testified that he had not deserted duty at any time—despite being accused of the same —and that the issue was first raised in the backdated letter, which he was pressured to sign after he had already left employment.

He added that he never received any invitation to attend a disciplinary hearing.

In its defence, the engineering firm, through its witness, testified that Alubala had failed to submit daily safety reports and had deserted duty, which made him eligible for summary dismissal.

However, the respondent failed to produce any evidence, such as clock-in records or attendance registers, to prove the manager was ever absent.

Furthermore, while the company produced a termination letter dated August 20, 2023, the court noted that it was only signed in mid-September, corroborating Alubala’s claim that it was a retroactive attempt to justify his removal.

“No show cause letter and/or warning letter was shown to have been issued to the claimant on account of desertion and/or absconding duty; or at all,” Justice Nzei observed.

“Failure by the respondent to prove the truth and/or validity of the alleged reason for termination made the claimant’s termination substantively unfair.”

The judge also highlighted the disregard for statutory procedures, stating that the respondent did not comply with Section 41 of the Employment Act, which required the company to give the claimant an opportunity to be heard.

Failure by the respondent to comply with the foregoing mandatory procedure rendered the termination process procedurally unfair.”

The court awarded Alubala Sh475,000 as compensation for unfair termination (equivalent to five months’ salary) and Sh95,000 as one month’s pay in lieu of notice.

He was also awarded Sh30,000 as the outstanding balance for April 2023 and Sh380,000 for four months of unpaid salary, with the amount totalling Sh980,000.