Mohamedi & Others v. The Manager, Kunduchi Sisal Estate, Misc. Civ. App. -25-71; 22/11/71; Onyiuke J.

Mohamedi & Others v. The Manager, Kunduchi Sisal Estate, Misc. Civ. App. -25-71; 22/11/71; Onyiuke J.

Fifty-six persons who were employed by the Kunduchi Sisal Estates sued their employer claiming Shs. 81, 741/- as compensation because of he termination of their services without notice. The sum comprised severance allowance, leave and travel allowances and a month’s wages in lieu of notice the Court held that the basis of the claim was summary dismissal and that by section 28 of the Security of Employment Act, Cap. 574, the jurisdiction of the court was ousted. The district magistrate relied on Kitundu Sisal Estate v. Shinga (1970) E. a. 557 in arriving at his decision. For the appellant it was argued on appeal that that case was distinguishable from the present one because the latter case concerned claims not on summary dismissal but upon the exhaustion of the work which the appellants had been employed to perform. It was also submitted that the termination of contract services without due notice does not necessarily amount to summary dismissal.

            Held: (1) “S. 19 of the Security of Employment Act, Cap. 574 restrict the right of an employer to dismiss an employee summarily. It provides that subject to the provisions of s. 3 but notwithstanding the provisions of any other law no employer: (a) shall summarily dismiss any employee or (b) shall, by way of punishment, make any deduction from the wages due from him to any employee, save for the breaches of the Disciplinary Code, in the cases and subject to the conditions, prescribed in this part and the second Schedule to this Act.” S. 20 of the Act gives the right to an employer to dismiss an employee summarily for breaches of the Disciplinary Code in the cases in which such penalty is allowed under the Code. S. 21 prescribe the procedure to be followed before that right can be exercised. The contention for the appellants was that unless an employer complied with this procedure and for a

breach which justifies summary dismissal under the Code any purported dismissal cannot amount to summary dismissal and therefore s. 19 which ousts the jurisdiction of the court cannot apply. The short answer to this contention is that where an employer does not comply with the Act his action becomes wrongful but is still summary dismissal for which but for s. 19 of the Act the employee can bring an action for damages. Compliance with the provisions of the Act is a complete defence to an action for wrongful summary dismissal but that is not the point. S. 19 preclude an employee from bringing any proceedings with regard to summary dismissal so that the question whether the employer has a defense or not can badly arises. Compliance with the provisions of the Act does not constitute summary dismissal. It rather provides a justification for summary dismissal.” (2) “[It was further contended’ that the absence of notice of termination of employment does not necessarily amount o summary dismissal. The substance of his argument was that under s. 32 of the Employment Ordinance as amended by The Employment Ordinance (Amendment) Act 1962 a contract of service which cannot be terminated without notice may yet be terminated without notice by payment of all wages and benefits to which an employee is entitled. S. 32 of the said act provides as follows:- “Either party to an oral contract of service may terminate the same – (a) in the case of a contract which may be terminated without notice, by payment to the other party of a sum equal to all wages and other benefits that would have been due to the employee if he had continued to work until the end of the contract period or in the case of contracts to which section 34 refers until the completion of the contract; (b) in any other case, by payment to the other party of a sum equal to all wages and other benefits that would have been due to the employee at the termination of the employment had notice to terminate the same been given on the date of payment.” It is common ground that the contract of service in this case was an oral contract of service as defined in s. 2 of the Employment Ordinance as amended by Act 62 of 1964.” (3) “When an employee is dismissed summarily without justification he has a cause of action against the employer, that is to say he can bring an action for summary dismissal against the employer. Usually it takes the form of action for damages. These damages may be general or special depending on whether he employee is claiming a specified amount such as severance allowance or unused leave pay (special) or is asking the court to assess his loss such as the claim for reasonable notice (general). These claims have to be founded on a cause of action ………..Assuming without deciding the point that s. 32(b) provides an alternative remedy the fact still remains that the cause of action is basically one for summary dismissal. S. 30 of the Employment Ordinance (Amendment) Act 1962 provides that an oral contract of service from month to month (and it is common ground that that was the nature of the contract in this case) can be terminated – (i) by notice; or (ii) by payment in lieu of notice; or (iii) summarily for lawful cause. In the present case the contract was neither terminated by notice nor by payment in lieu of notice. It could only then have terminated summarily. The appellants were really contending that the summary termination was without lawful cause and was why they were claiming a month’s wages in lieu of notice. It is obvious therefore that

Their cause of action was for summary dismissal without lawful cause. Unfortunately for them s. 28 of the security of Employment Act says that proceedings relating to such cause of action cannot be entertained by the law courts. they must reconcile themselves to the legal position that where a contract of service is terminated, that is to say, where they are made to stop work either expressly or by implication, without notice or without payment in lieu of notice where notice is required it can only mean summary dismissal. On principle this is the position and on authority the Court of appeal for Eastern Africa has said so in the Kunduchi Sisal Estates case and it is binding on me.” (4) Appeal dismissed.