For nearly five years, it has been a tough run for former Nairobi Hospital Chief Executive Officer (CEO) Allan Pamba in his pursuit of justice, over what he felt was unfair dismissal from the premier healthcare facility.
And so when Justice Nzioki wa Makau last Thursday issued a verdict backing his claims and awarded a Sh206million compensation, it was no doubt a major relief for Dr Pamba albeit temporarily. The judge stayed the judgment for 30 days following an application for an appeal by the hospital.
Filings in court reveal a messy fallout between Dr Pamba and the hospital's management barely six months into the lucrative job.
Dr Pamba was hired in March 9, 2020 at a monthly salary of Sh3 million until October 2, 2020 when his contract was terminated on account of alleged unsatisfactory performance. This was after his appraisal by the Board of Management chairperson Dr Irungu Ndirangu.
Through a letter dated October 2, 2020, Dr Ndirangu informed him of the termination of his employment on account of a unanimous resolution by the Board of Management passed in a Special Meeting held on the same date.
However, two former board members – Robert Francis Shaw and Charles Wambugu -testified in court that the issue of Dr Pamba’s performance or termination was not discussed in the said meeting.
He noted that he learnt of the claimant's dismissal from the press.
Mr Shaw told the court that the Minutes presented in court did not truly reflect what happened during the impugned board meeting. He affirmed that there was no agenda or resolution to terminate the claimant from his position. He noted he was a member of the HR subcommittee of the board, and the issue was never brought before the said committee.
The court heard that even if there was such a resolution, the same was in violation of the hospital’s board charter.
The charter provides that “a special meeting of the board or board committee will not discuss any matter other than that specified in the agenda”. Dr Pamba’s performance was not on the agenda item during the said meeting.
Court papers show that an extension of his probation had been recommended for a further three months ending December 2020, and he was to be placed on a performance enhancement plan. He declined to execute the said plan and his extended probation, constraining the hospital to terminate his contract.
Dr Pamba stated that he was hounded out because of vested interests by a board member, including granting tenders to a certain company.
He highlighted the milestones he achieved while at the facility, including adding a seven-bed facility.
Another achievement, he said, was negotiating with the United Nations for a $10 million (Sh1.29 billion) investment for the expansion of the facility, though Dr Ndirangu denied this and claimed that the deal was negotiated by the board members.
Dr Ndirangu also denied the assertions made against him by the former CEO, including allegations of repeatedly coercing and threatening him to ensure that a tender for security system installations was awarded to a particular company.
He stated that the advice he gave Dr Pamba was only aimed at offering guidance and assistance, which the former CEO was free to disregard.
Dr Ndirangu further denied that he asked Dr Pamba to pre-qualify a particular law firm to the panel of hospital advocates.
In the claim, Dr Pamba stated that the alleged unsatisfactory performance was aimed at painting him as a non-performer and setting the stage for his unlawful dismissal.
Though he scored above expectation in his first and second evaluations, the court heard that one board member scored him below expectation in all attributes in the third evaluation.
Dr Dorcas Kiai, the HR director, testified that the process followed in the review of probation was flawed.
She said she had offered written guidance on the procedure of probation review but the same was ignored.
Dr Kiai noted that there was a possibility to serve probation for nine months if there is an extension of probation, and that if there is poor performance after assessment, the contract could be terminated.
She clarified that as per the letter, the performance review was to be done by the chairman of the board and not the entire board. She further noted that there was no consent for the extension of the probation period as provided in the Employment Act and that the policy provided for the extension of probation for up to three months.
In his verdict, Justice Makau stated that the dismissal of Dr Pamba was based on malice and bad faith since the termination was founded on a disputed and irregular resolution of the Board of Management.
The judge said it was wrong for the Hospital to terminate Mr Pamba’s three-year contract six months after his appointment and immediately after the end of the probationary period.
The judge found that Dr Pamba was notified of the dismissal in a callous and offending manner as there was no termination notice or disciplinary process.
“His flourishing career seemed cut short abruptly and was distressed. He testified that he was jobless and could not obtain references from the respondents and that it was only after a few years that he finally obtained employment,” said the judge.
While giving a decision in Dr Pamba’s favour, the court found that had Dr Ndirangu followed the law in the extension of probation and if the hospital had lawfully terminated the claimant, there would have been no adverse finding against them.
“The respondents almost decimated the claimant's ability to find employment and therefore are liable for the damages caused when the claimant was unlawfully terminated,” said Justice Makau.
The court awarded him Sh117 million as payment of salaries for the balance of the three-year contract, Sh11.7 million (leave dues), and one-year salary compensation (Sh36 million).
He was also awarded Sh150,000 for telephone allowances, car allowance (Sh13.5 million), home security allowance (Sh3 million), medical cover (Sh15 million), and Sh10 million damages for defamation.
