After being laid off, 61 employees sued the company seeking to have their summary dismissal declared wrongful.
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Useless court orders? Ex-workers sacked unlawfully still waiting for Sh6m payout
What you need to know:
- After being laid off, some of the employees left almost immediately for their upcountry homes.
- Sixty one employees sued the company seeking to have their summary dismissal declared wrongful.
In May 2013, about 200 employees of Emco Billets and Steel Ltd went to work one morning, only to be told they were no longer needed.
They got a gate pass that had been pre-signed by a supervisor and security personnel that read: “Allow all people out.”
After being laid off, some left almost immediately for their upcountry homes, but 61 went to court to seek redress.
They sued on July 11, 2014, asking the court to declare that the summary dismissal was wrong, unfair and discriminatory.
They sought two months’ salary in lieu of notice, severance pay equivalent to one month’s salary for each year worked and damages for unlawful termination equivalent to 12 months’ salary.
They also wanted a certificate of service and payment for unused leave days.
One of the claimants, Nicholas Ndungu Macharia, testified for himself and the other claimants. He said he was hired on September 16, 2010 as a gas cutter. He worked until May 8, 2013, at about 10.20am, when the company’s human resources manager handed them a note to leave the premises.
But the company argued that the claimants had absconded duty on May 9, 2013.
However, Justice Hellen Wasilwa said no notice was issued to the workers to show cause why they should not be dismissed for absconding duty.
“No disciplinary hearing was ever conducted against them and thus any action taken by the respondent was against the laid-down procedure. They were dismissed without a hearing,” the judge said in her December 10, 2018 verdict.
The court directed Diamond Ali Hasham Lalji and Shahid Diamond Lalji Nurani, the directors and shareholders of the company, to pay one month’s salary in lieu of notice and six months’ salary as compensation for unfair termination. The total came to Sh6,101, 234 to be shared among the claimants.
The firm was also ordered to shoulder the cost of the lawsuit.
But, six months later, they had not been paid, and the company directors had not filed an appeal, which prompted the claimants’ lawyer to seek an auctioneer.
On October 22, 2019, the claimants instructed Mbusera Auctioneers to proclaim the respondents’ machines, fittings and factory equipment. However, on the day of attachment, it was realised that the directors had filed objection proceedings, claiming that the equipment had a debenture of Sh250 million in favour of Co-operative Bank.
This information was shared when Mbusera Auctioneers stormed the premises of Trident Insurance, a company also owned by the respondents and which had insured the machines.
When the properties could not be auctioned, lawyers for both sides met and Trident’s attorney promised to advise his clients to pay the claimants.
On February 19, 2021, the claimants’ lawyer filed a certificate of urgency for the court to compel the respondents to pay the claimants plus the costs of the suit within 30 days or the directors would be committed to civil jail.
“We had appeared in court thrice, but neither the directors nor their lawyers showed up. When the certificate of urgency was filed, the directors’ lawyers from Okongo Wandango and Co. Advocates showed up swiftly to counter the order. They promised that the money will be paid by November 20, 2021,” explained Mr Dennis Oino, one of the claimants. Mr Oino had joined the company in 2009.
On November 4, 2021, the court lifted the arrest warrants and suspended the orders to the Inspector-General of Police to arrest the directors, directing that the parties appear a week later for further discussions.
“The payment never came, and instead, another lawyer showed up and said the director had fallen ill with Covid-19,” Mr Oino said.
On December 16, 2021, the court directed the Inspector-General of Police to arrest and produce Diamond Ali Hasham Lalji in court on December 20, 2021. That never happened. The court issued an arrest order on December 24 against both directors. Mr Oino said that was yet to be executed.
In a January 5 letter from the claimants’ lawyer to the deputy registrar of the Employment and Labour Relations Court, the lawyer expressed his worries that any further delay in arresting could allow the directors to flee.
The Inspector-General of Police did not respond to the Nation’s emailed queries on why the arrest had not been enforced.
“We have suffered a lot over the past eight years since we were unlawfully terminated, and some of our former colleagues have died while waiting for compensation,” Mr Oino lamented.
“It is also very difficult for us to get other employment opportunities due to our age, even though we have tried. We just want our money.”
