The Employment and Labour Relations Court has ruled that suspension of an employee's salary for any reason is a disciplinary action that should never be taken without due process.
Justice Agnes Nzei, sitting in Mombasa, further ruled that due process involves serving a formal charge or statement of charges on the employee and giving him or her an opportunity to be heard, a cardinal principle of the rules of natural justice.
"The payment of an employee's salary is a crucial and pivotal term of every contract of employment and any employee whose salary is wrongfully withheld or suspended by an employer is entitled to consider himself to have been constructively dismissed," said Justice Nzei.
In her ruling, she held that Mr Francis Mubea, a former chief clerical officer, was constructively dismissed by the County Government of Mombasa and that his sacking was unfair. Constructive dismissal occurs when an employee chooses to resign because of intolerable conditions in the workplace by an employer.
Justice Nzei noted that the essence of a salary is to compensate an employee for work done or services rendered, hence its suspension without lawful justification is unfair.
"Suspension of payment of salary without lawful justification and after due process is unfair and subjects the employee to servitude and humiliation," Justice Nzei said, adding that a salary includes allowances and statutory deductions.
Mr Mubea had sued the County Government of Mombasa for refusing to pay him his benefits and dues after he resigned.
He also sued the County Public Service Commission, the county secretary, the chief health officer and the sub-county medical health officer. Justice Nzei also ruled that the county's decision to remove Mr Mubea's name from the payroll without following due process was unlawful and contrary to the Employment Act.
She allowed Mr Mubea's claim for Sh76,272 as unpaid salary for August and September 2017, days worked in October 2017 and Sh39,880 as one month's salary in lieu of notice.
Compensation
The judge also awarded the plaintiff Sh398,880, equivalent to ten months’ salary, as compensation for wrongful termination of employment.
Mr Mubea told the court that, when he applied for and took his annual leave on July 31, 2017, the respondents suspended his salary and removed his name from the payroll without any lawful justification, or formal charges and without subjecting him to any disciplinary process.
This, he told the court, was caused by his refusal to process a cash payment in March 2017 for the benefit of his immediate superior, a sub-county medical officer of health, for the repair of a motor vehicle in September and November 2016.
Mr Mubea testified that he refused to process the cash payment as requested by the officer because the cash sales receipts presented to him were not dated, there were no ETR receipts and there was no inspection report from the regional chief mechanical engineer on the vehicle.
The county government denied Mr Mubea's claims, saying, he had resigned of his own volition.
It argued that any allegation of bad blood between him and the medical officer was a smokescreen to divert attention from the fact that he absconded duty.
The devolved unit added that Mr Mubea had gone on leave without the approval of his superior, effectively absconding duty, contrary to the Public Service Commission's Human Resources Manual 2017 and that his suspension was in line with the manual.
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