The Labour Relations court has declined to quash decision of the electoral commission to dismiss one of its ICT officers for engaging in dual employment to supplement his income.
Mr Oyugi Omuomo was sacked from the Independent Electoral and Boundaries Commission (IEBC) in January 2023 after it was discovered that he was working with Maseno University as a network technician during his free time.
Justice Mathews Nduma said the judicial review application filed by Mr Omuomo asking the court to quash his dismissal was inappropriate and could not address the dispute involving the termination of employment.
Employment and Labour Relations Court Judge Mathews Nduma Nderi. File | Nation Media Group
This is because at the time Mr Omuomo approached the court he had also filed an appeal internally at IEBC using the Human Resource and Administration Manual (Polices and Procedure) challenging the dismissal, which the appeal was still pending.
"The application is inappropriate as filed to deal with contractual issues between Mr Omuomo and IEBC and is dismissed on that basis alone. The manner in which the applicant approached the court would not allow the dispute of facts in this respect to be fully ventilated and appropriate remedies granted," said the judge.
Mr Omuomo was sacked for breaching the IEBC human resource manual by engaging in another gainful employment. It was stated that he took up a job at the university on contractual basis when he was in a permanent and pensionable employment at the polls body. He was hired by IEBC in 2014.
In July 2017 he started working for the university during his free time and was later offered a one-year contract by the learning institution, which was renewed in three consecutive years.
He told court that the side job did not affect his main employment at IEBC since he never absented himself from work at the commission.
At the disciplinary committee hearing he stated that he had never missed a day of work at IEBC but one of the commissioners, Professor Abdi Guliye, retorted to him that he might have been "sneaking here and there".
The court heard that the disciplinary hearing lasted barely three minutes and Mr Omuomo was not furnished with any documents to show that he held two jobs.
The dual employment was discovered after the Vice-Chancellor (VC) of Maseno University wrote a letter dated August 31, 2021 to the IEBC Chief Executive Officer titled “confirmation of employment status for Mr Calisto Oyugi Omuomo.”
In the said letter, the VC stated “Mr Omuomo is employed at Maseno University as a network technician since July 2017 on full time basis. The background check is important for mutual benefit.”
Following this letter, IEBC issued Mr Omuomo with a notice to show cause requiring him to explain why a disciplinary action should not be taken against him for misconduct for holding two jobs in different public institutions.
According to the commission, this amounted to gross misconduct.
In response to the notice, Mr Omuomo admitted taking up a job with the university while still serving IEBC. His only denial was that the job held with the university was not on a permanent and pensionable basis.
The issue, however, went silent until December 2022 when he was invited to a disciplinary hearing before two commissioners, Molu Boya and Abdi Guliye, leading to the termination on January 19 the following year with immediate effect.
During the period the commission had stopped payment of his salary for 16 months, totaling to Sh2.5 million, though he was still working with IEBC.
The commission informed the court that the employment terms precluded the officer from being engaged directly or indirectly in any other business or occupation other than his employment.
However, in the ruling Justice Nderi noted that although the officer had admitted the misconduct he was accused of, by serving two public institutions at the same time and for considerably long period without detection, the IEBC took an inordinately long period to process the disciplinary hearing.
The court said matters of procedural fairness arising from the case were amenable to resolution in terms of the contracts of employment between the parties and the Human Resource and Administration Manual (Polices and Procedure) that governed the disciplinary process.
Mr Omuomo contended that the dismissal was unprocedural, unlawful and unfair since he was never provided with a report of the investigations.
He added that although the disciplinary hearing should have been conducted and concluded within six months, it was done after 15 months in violation of his right to fair administrative action.
The court heard that he filed an appeal internally stating that his case was heard by two commissioners sitting in a Human Resource Manager Advisory Committee, as opposed to Directors and his immediate supervisors, thereby denying him the right of appeal to the commission Disciplinary Committee as required by law.
He said the appeals committee is comprised of Commissioners and as at the time of filing the matter in court, the commission did not have any commissioners.
He maintained that the process of his dismissal was illegal and in breach of the IEBC Human Resource Policy and Procedure Manual.
"The disciplinary hearing should have been conducted and concluded within six months but was done after 15 months in violation of applicant’s right to fair administrative action. The disciplinary case ought to have been submitted by the supervisor to the management disciplinary committee which hears cases for employees in position five to ten," his advocates argued.
