Kwale ordered to pay clinical officer’s Sh4 million withheld pay
Mombasa Law Courts.
A court has ordered the Kwale County government to pay a clinical officer his salary arrears of Sh4.5 million that were withheld for almost two years over alleged absenteeism.
Employment and Labour Relations Court Judge Byram Ongaya also directed that the money be paid to Mr Samuel Kiptalam by October 1 or interest at court rates will start accruing from the date of the judgment.
Justice Ongaya also set aside a letter that stopped Mr Kiptalam’s salary.
He directed the clinical officer to report to the medical superintendent at Samburu Sub-County Hospital to be assigned duties.
The stoppage of Mr Kiptalam’s salary and the proposed disciplinary action, per a show-cause letter dated November 23, 2020 was unfair, the judge ruled.
“The letter to show cause also shows that the claimant had worked some of the days in the months he was alleged to have been absent which the court finds to be a manifestation of his willingness to work despite the difficulty and risky Covid-19 pandemic and his predisposed health status,” Justice Ongaya said.
The court also noted that a circular to employees was categorical that people with pre-existing conditions had to work from home.
The judge said it would have been irresponsible and against the circular for Mr Kiptalam to report to work with his disclosed pre-existing condition.
Justice Ongaya also said that the medical superintendent would call Mr Kiptalam to work only when it was necessary.
“First there was no evidence that a scenario arose when it was very necessary for the claimant to report at work and the medical superintendent required him to report at work in such very necessary situation and he failed to do so,” said Justice Ongaya.
Mr Kiptalam argued that on May 22, 2019, he was summoned by the county Health executive and told about the theft of a patient’s monitor. He and others were singled out as the perpetrators, and the executive threatened to transfer him.
He said DCI officers investigated the theft and exonerated him.
The court was told that Mr Kiptalam was transferred on June 10 2019 to Samburu Sub-County Hospital. He said he opposed the transfer on the ground that he needed to clear his name before moving to Samburu.
He argued that the county government unlawfully stopped his salary and summoned him to appear before a human resources panel, which he said resolved not to hear him until he reported to the Samburu hospital.
Mr Kiptalam said he met the Health executive on September 23, 2019 and that the executive apologised about the events.
He alleged that his rights to human dignity, fair labour practices, fair administrative action, and fair hearing were infringed and that the stopping of his salary violated the Employment Act of 2007.
Mr Kiptalam also argued that he had a clean record of service that was free from warnings or claims of dereliction of duty.
For its part, the county government denied his claims and said his deployment to the Samburu hospital was due to service needs and that was required to report to work on June 21, 2019.
It argued that Mr Kiptalam reported to work on February 14, 2020 but he occasionally absconded duty without proper leave.
The county government said the medical superintendent had reported to the Health chief officer that Mr Kiptalam was absconding duty.
The chief officer then issued the notice to show cause.
It also argued that Mr Kiptalam had not requested permission to be away from duty and that stopping his salary was lawful and fair.
The devolved unit, which said a final decision on the disciplinary process had not been reached, had asked the court to dismiss the case.
