Credit Manager and due to good performance of his duties, he was confirmed as the respondent’s Credit Manager on 1st November 2019.
After exposing the directors, the management decided to remove him from his position and a committee meeting of Bingwa Sacco resolve to deploy him to the debt collection department as the Debt Collection Manager on 1st March 2021. On 23rd April 2021, the committee met again and resolved that the claimant be transferred to Kianyaga Branch. A transfer letter was issued on 19th July 2021 to report to Kianyaga on 1st August 2021 and on 27th July 2021 Njuguna signed the job description as acceptance to his deployment to Kianyaga Branch.
However, on 29th July 2021, he wrote a letter declining the transfer to Kianyaga Branch as a Branch Manager and stated that he would remain in his earlier position until his grievances were addressed by the management. He never reported to Kianyaga Branch on 1st August 2021 and therefore he was dismissed for gross misconduct of insubordination and failure to report to work. However, according to Njuguna, the transfer to Kianyaga as Branch Manager was a demotion because the said position ranked below credit manager in the Organogram which was in force then and his letter of grievance about the said transfer was ignored and in response, he was suspended from August to end of September 2021. Subsequently, he was dismissed without being accorded any hearing as required under section 41 of the Employment Act.
Director Andrew Francis Kibara Mugo had defaulted on his Sacco Loan, he was a member of the Sacco, and he wanted to continue defaulting on the loan quietly, he was powerful in the Sacco and could terrorize the managers, and the action taken against the claimant was retaliation. Njuguna seemed to have touched the untouchable and he was therefore going to face the consequences. The first consequence was transfer to a non-existent position of Debt Collection Manager SG4 vide the letter dated 20th February 2021. The second consequence was the loss of a car allowance of Kshs.10, 000.00 per month from 1st March 2021 when the transfer took effect. The third consequence was a deployment to the Kianyaga branch as a Branch Manager vide the letter dated 19th July 2021 which was a demotion in rank, the fourth consequence was suspended for two months and finally dismissal from employment without being accorded any hearing.
The judge noted, “In view of the foregoing analysis, I agree with the claimant that the said deployment/transfer were retaliatory or disciplinary action taken against him for doing his duty as the credit manager of the Sacco”. The ruling further reads “As regards the termination, I have already made a finding of fact that the reason for the termination was not valid and fair and fair procedure was not followed. Therefore I make declaration that the termination of the claimant’s employment vide the letter dated 1st October, 2021 was unfair and unlawful within the meaning of Section 45 of the Employment Act”.