In a ruling dated November 16, 2023, by Employment and Labour Relations Court Judge Brayam Ongaya, he noted, “In summary, there was no lawful order that the claimant failed to obey, and further, he was not guilty of gross negligence or misconduct.” The order was null and void. Hence, there was no valid reason for the claimant’s termination of employment. Where there is no valid reason for termination, regardless of the procedure followed, the termination is still unlawful.” The final order reads, in part, “The declaration hereby issued that the termination of the claimant’s employment with HELB was wrongful, unfair, discriminatory, null and void, or rescinded”
By The Weekly Vision
The Chief Finance Officer at the Higher Education Loans Board, Shem Andrew Githimu, who was sacked by HELB on flimsy grounds of having secretly written a letter to the Ethics and Anti-Corruption Commission, has been reinstated to his old post. Mr Gathimu claims that he was under undue pressure from the HELB management to act on instructions that were against the law, the organization’s policies and procedures, and his profession, and accordingly, on June 4, 2019, he contacted and made a report to the Ethics and Anti-Corruption Commission (EACC) for investigation and appropriate action.
Githimu had filed a statement of claim, praying for judgment against HELB, seeking a declaration that the termination of his employment with HELB was wrongful, unfair, and discriminatory and should be rescinded. He also pleaded that he be reinstated as the Chief Finance Officer of HELB and that he should be paid damages for wrongful termination and discrimination in terms of the Employment Act 2007.
Mr Gathimu says he was employed by HELB on June 4, 2007, as Head of Finance in the Grade II salary scale and entered at a basic salary of Kshs. 127,980 per month, plus a house allowance of Kshs. 60,000. He served as Head of Finance until 2017 when there was a restructuring that culminated in his position being re-designated to Chief Finance Officer. He served with diligence and due care until his contract of service was suddenly terminated through a letter dated September 27, 2019, without valid reasons for termination being stated.
According to him, there was a series of events leading up to his termination. He states that on March 25, 2019, the HELB’s direct report, Finance Manager, Ms. Kerin Lidoroh, brought to his attention a discrepancy in the HELB’s March 2019 payroll. Specifically, she was concerned that the basic salary figure for the Chief Operations Officer (COO), Mr. Geoffrey Monari, differed from that paid in previous months. On further inquiry, she was advised by the acting human resource manager (Ag. HRM), Mr Gilbert Wir, that this incremental credit had been done with the approval of the Chief Executive Officer (CEO), Mr Charles Ringera. In support, he produced a memo prepared by himself for the CEO, requesting a change in the COO’s salary.
He then sought the legal advice of the Head of Legal and Corporation Secretary (HLSC), Mrs Bernadette Masinde, who, as the custodian of all board deliberations, would have had a copy of the said board resolution. She responded in the negative and stated that on March 26, 2019, she had separately advised that there were several people affected by the matter at hand, and it was due to the salary structure. She indicated that the organization should adopt a holistic approach to resolving salary discrepancies.
Further, he maintained that without board approval, the process was illegal and irregular and that handling only one individual’s salary was discriminatory. Following his letter to the EACC, on June 6, 2019, he wrote a statement to the EACC. Other officers of the respondent as well as board members were also summoned to write statements.
In his statement, he maintained that it would be discriminatory to increase the basic salary of the Chief Operating Officer in the manner it was being directed by the CEO, whereas there were numerous other officers whose salaries suffered similar discrepancies. Gathimu’s witness, Peter Mwita, an investigation officer employed by the Ethics and Anti-Corruption Commission, confirmed that the Commission received the complaint by Gathimu against HELB’s CEO, Charles Ringera, about the impugned instruction on the salary increment.
The investigations revealed that in March, Mr Charles Ringera, CEO of HELB, by a memo dated March 20, 2019, prepared by Acting Human Resource and Administration Manager Mr. Gilbert Wir, approved the award of incremental credits to Mr. Geoffrey Monari. The said review was meant to harmonize the basic salaries of the chief officers. The basic salary of Mr. Geoffrey Monari has been reviewed by three steps upwards, from Kshs. 218.791.13 to Kshs. 253,923.43 per month. Investigations further established that the salary increment awarded by the CEO of HELB, Mr Charles Ringera, to Mr Geoffrey Monari, was in contravention of Part c.2 (2) (1) to (iv) of the Public Service Commission Human Resource Policies and Procedures Manual for Public Service (May 2016).
The Commission, having found that the CEO acted irregularly in the award of incremental credit to Mr Geoffrey Monari, issued a demand notice to the CEO, Mr Charles Ringera, for the recovery of Kshs. 491,852.20 paid to Mr Geoffrey Monari as incremental credits between October 2019 and November 2020. The HELB CEO appealed against the Commission’s decision, but the Commission upheld its decision.
In a ruling dated November 16, 2023, by Employment and Labour Relations Court Judge Brayam Ongaya, he noted, “In summary, there was no lawful order that the claimant failed to obey, and further, he was not guilty of gross negligence or misconduct.” The order was null and void. Hence, there was no valid reason for the claimant’s termination of employment. Where there is no valid reason for termination, regardless of the procedure followed, the termination is still unlawful.” The final order reads, in part, “The declaration hereby issued that the termination of the claimant’s employment with HELB was wrongful, unfair, discriminatory, null and void, or rescinded.”
The judge also gave the order of automatic reinstatement or continuation of the contract of employment of the claimant effective the date of the termination with full back payment of Kshs. 26,247,054.50 payable less PAYE and the claimant to continue in the employment of the respondent as Chief Finance Officer with attendant remuneration and benefits and to be deployed forthwith, and the claimant to be treated by the respondent as if the contract of employment had not been terminated at all. The judge also ordered HELB to pay him a sum of Kshs 10,000,000.00.
