Kabira Country Club, owned by businessman Sudhir Ruparelia, has been ordered to pay its former receptionist, Robert Elwayu, Shs 9.4 million, after the court found that he was unlawfully dismissed following the accusation that he was “sleeping on the job.”
Justice Anthony Wabwire Musana said although sleeping on duty can amount to gross misconduct, Kabira failed to give Elwayu a fair hearing and also failed to prove beyond reasonable doubt that he had actually been sleeping while at work.
Elwayu joined Kabira Country Club in November 2003 as a housekeeper and was later promoted to a receptionist, where he worked long 12-hour shifts for six days every week.
He claimed he worked on public holidays without receiving overtime or holiday pay and that he had been denied annual leave during some of his early years at work.
But everything changed for him on the night of November 30, 2018, when, while working the night shift, he suddenly developed a headache and informed his supervisor.
Elwayu said the supervisor advised him to place a wet towel on his head to ease the pain, but shortly afterwards, the hotel’s general manager found him with the towel and accused him of sleeping on duty.
Elwayu said the general manager immediately threatened him, telling him to resign or face dismissal.
Three days later, on December 3, 2018, Elwayu attended a disciplinary meeting where he denied sleeping on the job, insisting he had only been unwell.
Despite that explanation, Kabira Country Club concluded that he had committed gross misconduct and fired him on December 14, 2018.
However, Elwayu was already on annual leave and only received the letter on January 7, 2019. Two months later, he was called back and handed a cheque for Shs 1.2 million as his terminal benefits.
Believing he had been treated unfairly, he took the matter first to the KCCA labour office, and after mediation failed, he proceeded to the Industrial Court.
In his evidence, Elwayu maintained throughout the case that he had never slept while on duty during his entire 15 years of employment.
He told the court that no CCTV footage was ever shown to him despite the allegation being based on security camera recordings.
He also said he had never been given a copy of the hotel’s Human Resource Manual and only knew of the Collective Bargaining Agreement negotiated by his workers’ union.
Yet during cross-examination, Elwayu admitted he did not obtain a medical report after visiting a pharmacy for treatment and therefore had no documentary proof that he had been ill on the material night.
However, he maintained that no customers approached the reception while he rested with the towel on his head and insisted he was awake throughout.
Kabira Country Club insisted Elwayu had been caught sleeping and had admitted the offence during the disciplinary hearing.
Its former Human Resource Officer, Francis Kiggundu, testified that he had been found sleeping under the reception counter contrary to the company’s Human Resource Manual.
He said Elwayu attended a disciplinary hearing, admitted sleeping because he had a headache, and was thereafter summarily dismissed for gross misconduct.
Kiggundu further told the court that the dismissal was lawful and that Elwayu had already received his benefits under the Collective Bargaining Agreement.
However, under cross-examination, Kiggundu acknowledged that he joined Kabira only in July 2018 and therefore knew nothing about Elwayu’s employment before then.
He admitted he did not have a copy of Elwayu’s employment contract, did not have proof that overtime had ever been paid, and agreed that terminating an employee while on annual leave was improper.
Kiggundu also confirmed that although he had personally seen CCTV footage allegedly showing Elwayu sleeping, he did not bring it to court.
Kabira’s director of Human Resources, Venkata Chalam Ramaswamy Iyer, said he had not personally witnessed Elwayu’s alleged misconduct and had only been informed about it by others.
He also conceded that the CCTV footage had not been produced before the court, that there was no written policy allowing dismissal of employees while on annual leave, and that he had no evidence showing the Human Resource Manual had ever been given to Elwayu.
Elwayu was represented by lawyer Jonan Nuwandinda Rwambuka of Rwambuka & Co. Advocates, who argued that his client was ambushed into the disciplinary meeting without written notice and was denied enough time to prepare his defence.
Lawyers Shafic Mutesasira and Allan Mbonye, who represented Kabira, said sleeping on duty amounted to gross misconduct. They said Elwayu had admitted covering his head with a towel during his shift and that he had been given a fair disciplinary hearing.
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Justice Musana said Kabira had failed to comply with the basic legal requirements governing disciplinary hearings and that Elwayu had been summoned verbally on the very morning of the disciplinary hearing and ordered to appear only about 30 minutes later.
“[Elwayu’s] right to a fair hearing was systematically and fundamentally flawed and unfair, rendering [his] dismissal unlawful on procedural grounds,” he said.
He also found serious weaknesses in Kabira’s evidence, noting that it did not produce CCTV footage to prove its case.
Justice Musana said that neither of the company’s witnesses had actually seen Elwayu sleeping and that the only eyewitness, the general manager, never testified.
He declared that Elwayu had been fired unlawfully and awarded him Shs 343,000 for breach of due process, Shs 5.2 million as severance pay, Shs 400,000 as repatriation allowance, and Shs 3.4 million in general damages.
In total, Elwayu was awarded Shs 9.4 million, and Kabira was also ordered to pay the costs of the case.
