In the book The Little Prince, a fable and modern classic by French writer Antoine de Saint-Exupéry, the author states that “Words are the source of misunderstanding.” Often in the workplace, conflicts abound over what was said and what was meant. Is there a manner or form of communication from an employee that can be interpreted as disrespectful and insubordination? Is perceived rudeness by an employee sufficient grounds for termination of their employment contract?
The Employment Court in Nairobi sitting as an appellate Court from a decision of the Chef Magistrate’s Court determined this question in ELRC Appeal N. E015 of 2022 Mutaki vs Tire World Limited. Kenya’s judicial system has a hierarchy that allows those unsatisfied with the decision of the Court to appeal to a higher court.
Mr. Mutaki filed a claim before the Magistrate’s Court (Trial Court) for unfair termination by Mr. Mutaki. He stated that there was no valid reason to terminate his employment. Further, he was not given a hearing before the decision to terminate him was tendered.
The background is that on 16th October 2019, the Employer’s management notified him of a decision to transfer him from its Ngong branch to the Westlands branch. This decision did not sit well with him and he tried to challenge it through a series of email exchanges on the same day. The management was unamused by the emails. First, they indicated that the emails were disrespectful. Further, they argued that Mutaki’s decision to write to the Managing Director without taking up the matter with the Human Resources Department was contrary to protocol. As a result, his contract was terminated.
The trial court found in favor of the Employer, finding that Mutaki had acted in a manner that bordered on insubordination. Further, the court found that although he was summoned to a meeting at which he would have been heard, he snubbed the invite. Thus, the decision to terminate his employment was justified.
The Employment Court sitting on appeal, began by looking at the emails that were the source of the conflict.
After the employee was notified of the decision to transfer him to Westlands, he wrote an email to one Bhavin Gudka on 16th October 2019 at 9.27 am requesting a meeting to air his grievances regarding what he described as his constant reshuffles. Bhavin responded to the email on the same day at 9.44 am advising him to take up the matter with the Human Resource (HR) department. He wrote back to state that the HR department had indicated that the decision to transfer him emanated from the Regional Manager. However, when he contacted the manager, he was dismissive of the issue.
The Employee expressed his doubts regarding whether the said manager understood his job description, expressing the view that transfers should perhaps not be handled by the Regional Manager. He therefore sought Mr. Bhavin’s clarification on who was responsible for transfers. The emails didn’t stop there though. In the email trail, the employee complained about having been transferred just about six months before and the cost implications of the frequent transfers. He appeared to suggest that while he had been subjected to a series of transfers, other members of staff had not been treated in the same way.
The Employee insinuated that he had been treated with insensitivity. For instance, he asserted that his last transfer was effected notwithstanding that he had a patient who was being attended to by a specialist in the neighborhood of where he was working. He suggested that his transfers may have been motivated by ulterior factors. He specifically insinuated that one John in the HR department appeared to have used the transfers as a tool for settling some personal vendetta between them. Finally, he asked Bhavin to make it clear to him if the company was no longer in need of his services.
It is this email trail that seems to have caused the Employer some discomfort and the employee was accused of disrespect for his seniors. As a result, he was issued with a letter of termination of his contract.
Did the Employer have a valid reason to terminate the employment contract?
The trial court found the employee’s expressions in the emails to have been disrespectful to his superiors. In its view, the emails lacked courtesy, decorum and reverence. As a result, it agreed with the HR officials that the correspondences were disrespectful. The court further found that he was summoned to a meeting on the same day but snubbed the summonses. As such, he found this conduct as constituting insubordination.
The Employment Court, on the other hand found that the language that was adopted by the Employee was condescending. However, “the fact that the language was condescending does not mean that it was abusive.”
In the Court’s view, suggesting that someone has not understood his job description cannot be construed as an insult. To question why the Regional Manager was handling staff transfers while they had a functional HR department, could not be interpreted as disrespectful. Further, his complaint that the decision to transfer him did not consider the cost implications on him was not an abuse. The Court found that he was merely expressing his concern about the financial implications of the decision. He was also questioning the fairness of the decision to transfer him, so soon after he had been transferred to the Ngong Branch while some of his colleagues did not get transferred. These concerns did not constitute insubordination.
The Court also found that when the employee lamented about being treated differentially with respect to transfers, this was neither abusive nor insulting. It was merely an expression of concern by him about the purported unequal treatment at the workplace which the Employer only needed to clarify without resorting to the drastic decision to terminate his services.
While finding that the Employee was not abusive and insulting in his emails, the judge held that “There is no evidence on record to support the conclusion that he acted in an insulting and abusive manner against his superiors.
The Court also noted that the events leading to termination took place on the same day of the termination. The management accused him of insubordination and stated that he was invited to a meeting on the same day but declined to attend. The Court found there was no suggestion of an invitation to a meeting in the correspondence shared. In the letter of termination, it was not even raised as part of the reason for termination of employment. It was therefore wrong for the trial court to have arrived at the finding that the employee snubbed the alleged meeting without evidence.
Did the Employer follow the correct procedure in terminating him?
The Employment Court while finding that the employee had exhibited impolite behaviour in his correspondence with the employer’s officers, stated it could not be interpreted as an insult.
The Court found it curious that although the record showed that the parties corresponded through email, the HR officers allegedly chose to summon the employee orally for a disciplinary session on the same day. What they ought to have done was to issue him with a formal notice to show cause letter to explain why disciplinary action should not be taken against him for the alleged misconduct. However, no such letter was issued. The Employer violated the Employee’s rights under Sections 41,43, 45 and 47 of the Employment Act by failing to justify the decision to terminate an employee’s contract of service and not following the proper procedure.
The Court therefore set aside the decision of the trial court, stating “I find that the Respondent did not demonstrate that it had valid grounds to terminate the Appellant’s contract. Further, I find that the Respondent did not uphold fair procedure in releasing the Appellant from employment.”
The Court entered judgment for the employee for Ksh. 32,303.00 being pay in lieu of notice to terminate his contract. In determining the compensation, the court can issue a maximum of 12 months’ salary under the Employment Act. Justice B.O.M Manani held that “I note that at the time his contract was terminated, the Appellant had just about two (2) months before his tenure ran out. As such, he can only seek compensation for unfair termination of his contract for the two months that were remaining. As such, I enter judgment for him (the Appellant) for compensation for unfair termination that is equivalent to his salary for the two months.”
Conclusion
Language is often subjective from one person to another. While some statements may be understood as insulting or demeaning by one person, that cannot be the basis for termination. There should always be room to seek clarification or explanation. This is why employers must ensure that when an employee uses language that is considered rude, they should be allowed an opportunity to explain their actions before a decision can be made about their guilt. This process involves issuing a show cause letter and then considering the employee’s response. If unsatisfactory, the employee is invited for a disciplinary hearing where the case against him, including any evidence against him is presented. The outcome of the disciplinary is then communicated to the employee. This process should be done by way of written communication as this forms part of the evidence in Court.
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