The Employment and Labour Relations Court has disapproved of the decision of the Nairobi Hospital to fire one of the ward attendants over alleged theft of food meant for patients.
Wycliffe Chogo’s employment was terminated in October 2017 on claims of having diverted food belonging to patients, which Justice Stella Rutto found were unsubstantiated. Justice Rutto also found that the termination process was unfair.
Though the judge did not order his reinstatement, she directed the hospital to pay him Sh667,122 as it failed to prove the allegations. The payout comprises compensatory damages in the sum of Sh592,997 equivalent to eight months of his gross salary and a month's salary in lieu of notice being the sum of Sh74,124.
“There was no evidence that the claimant was invited to give his explanation in answer to whatever allegations. Similarly, there was no evidence that a disciplinary hearing was conducted and the claimant granted an opportunity to answer to the allegations levelled against him in the presence of a fellow employee or a union representative of his own choice,” said the judge.
Mr Chogo’s dismissal was after the head chef at the premier health facility noted that food meant for patients in the wards was going missing. Upon investigations, it was deduced that Mr Chogo and others were involved in stealing it and were suspended by the hospital to allow investigations.
According to the hospital, the claimant was terminated for valid and just cause by fair and applicable procedures under the employment laws and its Human Resource Policy and Procedure Manual.
Justice Rutto, however, ruled that the hospital failed to produce evidence to prove the claims related to the alleged theft.
“Be that as it may, the report arising from such investigations, if any, was never produced in court. Needless to say, the allegations leveled against the claimant remained largely unsubstantiated. What’s more, failure by the respondent to call oral evidence did not help matters either and if anything, fundamentally impaired its case,” said the judge.
Regarding the hospital’s claim that the employee underwent a disciplinary hearing and that his termination followed a fair procedure, the court found that these assertions were not supported by any evidence in the record.
There was no evidence that the claimant was put on notice that the hospital was considering terminating his employment based on whatever allegations.
