Baraza v Kenya Police Football Club (Tribunal Case E051 of 2023) [2024] KESDT 779 (KLR) (4 June 2024) (Decision)
Neutral citation:
[2024] KESDT 779 (KLR)
Republic of Kenya
Tribunal Case E051 of 2023
E.Sifuna-Shiveka, Chair, Gabriel Ouko & A.M Owinyi, Members
June 4, 2024
Between
Francis Baraza
Claimant
and
Kenya Police Football Club
Respondent
Decision
A. Introduction
I. Parties
1.The Claimant is a male of sound mind residing in Nairobi within the Republic of Kenya.
2.The Respondent is a Football Club established in 2014 in the Republic of Kenya under Kenya Police Football Service and is an affiliate of Football Kenya Federation.
II. Jurisdiction
3.The Sports Disputes Tribunal jurisdiction has been invoked by the claimant under Section 58 and 59 of the Sports Act No 25 of 2013 which provides as follows: -Section 59 of the Sports Act states further that:-“The Tribunal may, in determining disputes, apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”
III. Background
4.Francis Baraza (hereinafter “the Claimant” filed a Statement of Claim dated 21st November 2023 alongside the following;a)A Verifying Affidavitb)Claimant’s List of Witnessesc)Witness Statement by himself with annexures
5.The Claimant’s position is that the employer /employee relationship between him and the Respondent had totally collapsed through unfair termination of his employment, Constructive dismissal and Outstanding terminal dues owed to him.
6.The matter was placed before the Chairperson of the Sports Disputes Tribunal who on 16th April 2024 decided that the case shall be heard by way of written submissions and that the decision of the Tribunal would be rendered thereafter.
7.The panel to hear the matter comprised of;Mr. Elynah SifunaMr. Gabriel OukoMr. Allan Owinyi
IV. The Case
The Claimant’s Case
8.By the statement of claim filed on 21st November 2023, the claimant stated that around December 2022, he and the respondent entered into a contract of employment for a period of 1 year (hereinafter the contract). The claimant under the contract would provide services as a professional coach.
9.The said employment was vide an oral contract and the Claimant stated that the said contract lapsed on or about the 25th of June 2023 at the conclusion of the Football Kenya Federation Premier League (FKF-PL) 2022- 2023 season and the Respondent formally engaged the Claimant vide a contract of employment dated 28th of June 2023.
10.To comply with the CAF Club licensing Rules that demand Football Kenya Federation Premier League Clubs to be managed by coaches who have attained the highest level of certification herein CAF ‘A’- License the Football Kenya Federation announced that in the 2024-2025 season, all top-flight Clubs would require holders of the said qualification “CAF ‘A’-Licence’’ and organized a Five (5) days CAF-‘A’ License Coaching refresher course that began on the 13th of August and ended on the 18th of August 2023.
11.The Claimant was voluntarily released by the Respondent to attend the said refresher course and avers that during one of the practical sessions, he unfortunately raptured his left Achilles tendon due to sudden dorsiflexion of his plantarflexed left foot. The Claimant’s mobility was condemned given difficulty he faced in walking.
12.Given the severity of the rapture, the Claimant’s left foot and ankle were initially immobilized in a cast. To make minimal movement, the Claimant was condemned to employ walking aid in the form of elbow crutches. This defeated his effective performance of duties.
13.Thus, the Claimant’s Assistant herein the Assistant Coach took full charge of the Team preparations pending the commencement of the League. However, the Respondent’s Chief Executive Officer later on directed the Claimant to attend the League matches given his witty match deciding coaching heroics.
14.The Claimant avers that his Assistant went for CAF- ‘B’ Licensing and despite his sickly situation, pain and mobility challenges attended the practice and training sessions in preparation of the fourth fixture on the 18th of September 2023.
15.On 24th of September 2023 at 1900HRS or thereabouts, the Respondent’s Team Manager called the Claimant asking him to keep off from training sessions schedules, interacting with the Players or generally its affairs pending communication from the Team’s Board management on his fate. He explained that this communication would be made to him on Thursday the 28th of September 2023.
16.The Claimant avers that Respondent failed to conduct a systematic and periodic process of measuring his performance against the established requirements of the job and from the above revelations, it is manifestly clear that without any color of right, the Respondent had unfairly, wrongfully and unlawfully terminated his contract of employment.
17.Further, by unveiling another employee in the same designation the Claimant occupied, it is clear the Respondent had constructively dismissed the Claimant’s employment without any notice or payment of outstanding salary arrears, severance and house allowance.
18.The Claimant averred that throughout his term of employment tenure he had no disciplinary case and/or prior warning, or any other disciplinary case against him and that the Respondent approved his service by maintaining him as an employee for the period served.
19.The Claimant further averred that the Respondent’s actions were discriminatory, unlawful, unfair and contrary to the basic tenets of fair labor practice as enshrined in the Employment Act and the Constitution.
20.The Claimant stated that the Respondent had deliberately refused, ignored and or neglected to pay his terminal benefits.
21.The claimant averred that he was never issued with a certificate of service despite making several oral requests and that the respondent had refused, ignored and/or neglected to issue the claimant with the said documents.
22.In the currency of his employment tenure, the Respondent failed to pay to the statutory bodies the requisite social security fund and the Hospital Insurance fund, NSSF and NHIF. The Respondent also failed to grant Medical insurance coverage to the Claimant to cater for his treatment on injuries and he had been neglected to foot for his medical bills including the surgery.
23.As a consequence of the Respondent’s flagrant disregard of their contractual and statutory obligations and duties, the Claimant suffered and continues to suffer great loss, damages and undue financial hardship, for which he holds the Respondents fully liable.
24.The Claimant sought for the Intervention of the Football Kenya Federation Independent Arbitration Committee but no response was forthcoming.
25.For the foregoing reasons, the Claimant seeks the following reliefs:a.A Declaration that the Respondents are in various, severe and irrevocable breach of contract with the claimant;b.A Declaration that the Respondent’s termination/dismissal of the Claimant’s employment was illegal and/or unlawful and/or unfair.c.An Award of general damages for breach of legitimate expectations and breach of contract.d.An Award for 12 months’ compensation for unfair and/or unlawful termination of employment at = Ksh 4,800,000/=e.An Award for 1-month salary in lieu of notice= Kshs 400,000/=f.An Award for unpaid housing allowance (15% Basic salary x 12 months’ x 3/12Years) Kshs. 1,200,000/=g.An Award for Service Pay 15 days’ salary x 3/12 years of service---Kshs 50,000/=h.A Refund of medical expenses of Kshs 200,000/= incurred.i.An Award for Costs of the suit.j.Interest on (d), (e) and (h) above.k.Such further or other relief as this Honourable Tribunal may deem fit.
26.The Claimant averred that the cause of action arose within the jurisdiction of this Honourable Tribunal and there was neither no other case pending nor no previous proceedings in any court between the Claimant and the Respondents over the same subject matter.
Claimant’s Evidence
27.The claimant supported his claim with a list of documents as filed on February 8, 2022 together with the claim. Those documents area.Contract of Employment dated 28th June 2023b.Copy of Demand Letter dated 06th of October 2023.c.Screenshot of SMS Correspondence.d.Screenshot of WhatsApp correspondence.e.Screenshot of X (formerly Twitter) updates.f.Photos.g.Medical Receipts.h.Medical Report.i.Treatment Notes.j.Newspaper Reports.k.Copy of Claimant’s ID.l.Certificate of Electronic recordsm.Any other documents as may be necessary during trial with leave of the Court.
28.The claimant also filed a witness statement by himself dated 21st November 2023 expounding further on how the events took place.
29.By way of further evidence, the claimant testified that he had discharged his obligations under the contract to his best ability. The Claimant orally responded that;i.The injury he suffered had occasionally rendered him absent, making his Assistant to take over the Team’s preparations.ii.His Assistant Coach was new and had hardly familiarized himself with the playing unit.iii.His absence limited his tactical preparations given that he was unable to periodically attend the training and practice sessions so as to introduce and or expand on emerging match winning concepts.iv.His absence during such sessions slowed the development and growth of departmental weaknesses that affected the Team’s performance.v.The abrupt sale of the Team’s Top Scorer to Tanzanian Giants had occasioned a goal drought
30.In the aforementioned meeting, he was given an ultimatum with regard to the oncoming fixture against Afc Leopards. He would thus be sacked if the Team drew or lost.
31.That no prior notice was given to him about the meeting and that was never informed of the right to attend with a colleague. He was all on his own.
32.There were no minutes of the meeting that were prepared and that he had been served none and neither were they presented in Court.
33.There was no disciplinary procedure that was followed and on 24th of September 2023 at 1900HRS or thereabouts, the Respondent’s Team Manager through Mobile Phone Number 0721334062 called the Claimant asking him to keep off from training sessions schedules, interacting with the Players or generally its affairs pending communication from the Team’s Board management on his fate. He explained that this communication would be made to him on Thursday the 28th of September 2023.
34.On Cross-examination, he stated that was first employed by the Respondents in 2022. The employment was hinged on a one-year oral contract that saw him earn Kenya Shillings Two Hundred Thousand a month.
35.That due to the impressive job done, the Respondent’s offered him a new one-year contract with a monthly salary of Kenya Shillings Four Hundred Thousand and the contract was negotiated and signed on 28th June 2023 and scheduled to end on 28th June 2024.
36.The management of the Respondent gave him permission to attend the CAF A Refresher Course on August 13–18, 2023. On August 14, 2023, he suffered the injury, stayed until the completion of the course, and on August 22, 2023, he went in person to see the respondent's team doctor. The physician on the respondent's team recommended that he consult Dr. Mailu, an orthopedic surgeon, for more medical guidance. He denied being a part of the Kulundeng FC team. He didn't take part in any of the team's games either, but he did occasionally go to watch the games.
37.On re-examination he stated that legally, he was allowed to interact or join them. His contract does not bar him from interacting with ex-internationals. He had heard about Fc Kulundeng’ but never played for or against them.
38.He further stated That Under Clause 15(e) of his Contract, there was no disciplinary procedure that he was ever subjected to. Neither was a notice about the disciplinary procedure sent his way in advance.
Claimant’s Submissions
39.The claimant’s counsel filed written submissions on March 12, 2024. According to the claimant, the issues for determination area.Whether the honorable tribunal has the requisite tribunal to handle the dispute.b.Whether the claimant’s contract was frustrated.c.Whether the claimant’s dismissal was procedural
40.Through an email dated 6th of November 2023 and attached letter dated on an even date, his Advocates on record sought for intervention of the FKF Independent Disciplinary and Arbitral Body. Efforts to seek for the intervention of the said body failed to yield into fruition and as candidly provided for in the contract, he sought for the intervention of this Honourable Tribunal.
41.The Claimant placed reliance on the following provisions of;A.Article 159(2)(d) of the Constitution of Kenya which states that ‘In exercising judicial authority, the courts and tribunals shall be guided by the following principles.’B.Section 59 of the Sports Act 2013 provides that; ‘The Tribunal may, in determining disputes, apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.’C.The Contract; that states ‘Any dispute that may arise regarding this contract or the interpretation of the terms and conditions hereof shall be formally reported in writing to the relevant FKF Independent disciplinary body for arbitration. In case neither party is satisfied with the decision of such a body, then the matter will be referred to the Sports Tribunal as per the existing structures.’D.Article 59 of the FIFA statutes in this regard provides as follows:1.The confederations, member associations and leagues shall agree to recognize CAS as an independent judicial authority and to ensure that their members, affiliated players and officials comply with the decisions passed by CAS. The same obligation shall apply to intermediaries and Licensed match agents.2.Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.3.The associations shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in the association or disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other association officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognized under the rules of the association or confederation or to CAS.E.Article 69 of the FKF Constitution on dispute resolution provides as follows:1.Disputes in the Association or disputes affecting Leagues, members of Leagues, Clubs, members of Clubs, Players, Officials and other Association Officials shall not be submitted to Ordinary Courts, unless the FIFA regulations, this Constitution or binding legal provisions specifically provide for or stipulate recourse to Ordinary Courts2.The entities mentioned in par. 1 above shall give priority to arbitration as a means of dispute resolution.3.The disputes as specified in art. 1 shall be taken to an independent Arbitration Tribunal recognized by FKF or CAF or to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.
42.The Claimant submitted that he was hired by the Respondents to serve as Coach and while undergoing his refresher courses, he unfortunately raptured his left Achilles tendon due to sudden dorsiflexion of his plantarflexed left foot. This indeed defeated the Claimants effective performance of duties that include training and coaching players, selecting players for matches and competitions, making tactical choices during matches and competitions as defined by FIFA STATUES.
43.Clause 15 of the Contract of Employment provided that;b)This contract may be terminated if the Coach’s performance is unsatisfactory based on the assessment of key performance indicators. The Club shall terminate the Coach’s contract on unsatisfactory performance by mutually terminating this contract. The Clubs’ executive Committee holds the mandate to determine whether a Coach’s performance is satisfactory or not. Performance will be determined from match results in the FKF League and tournament.c)This contract shall be automatically terminated when the club loses or draws in two consecutive matches. Also, when the Club loses or draws in three (3) separate matches, the contract stands terminated forthwith.e)The Coach shall be subjected to the Clubs disciplinary procedure before termination
44.The Respondent’s claimed that the contract was frustrated owing to results in three games where the Respondent team lost 1 game and drew in two. However, Clause 4 and 5 of the Regulations on Status and Transfer of Players provides for Rules for Employment of Coaches provides only two instances where a coach’s contract may be terminated; 4-Terminating a contract with Just Cause 5-Terminating a contract with just cause for outstanding salaries.
45.FIFA's jurisprudence about a coach's (or, more accurately, the team they are responsible for) athletic performance in and of itself is not a legitimate justification for withholding salary that is due or for ending an employment agreement because this is a wholly subjective and unilateral assessment.
46.Therefore, a condition that generally gives a coach's employer the right to terminate a contract due to the coach's subpar performance is provisional since it creates an obligation whose fulfillment is arbitrary and can only be determined by one party.
47.Consequently, because of the unequal bargaining power between the employer and the employee and the restrictions it imposes on the latter's rights, such clauses cannot be upheld.
48.If there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfillment of his contractual duties, such measures must be taken before terminating an employment contract.
49.The Claimant contends that Clause 15 of employment contract should not be taken into consideration in order to justify a termination due to its potestative nature, in-so far as it refers only to the coach’s performance. Potestative clauses, i.e. clauses that contain obligations which fulfillment are conditional upon an event that one party entirely controls, can in general not be applied, since they limit the rights of the other contractual party in an excessive manner and lead to an unjustified disadvantage of the latter towards the other
50.The Claimant submitted that during the hearing, the Claimant and the Respondent’s witnesses confirmed that no disciplinary procedure was followed in consonance to the contractual dictates. The Claimant was hounded out of employment without ever being told of the existence of the Disciplinary and Grievance handling procedure.
51.The Claimant averred that It is now settled law that before an employer terminates an employee the termination must meet the threshold of: -a.Procedural fairness as stipulated in section 41 and section 45 of the Employment Act, 2007b.Substantive justification on the reasons for termination must be demonstrated by the employer as stipulated in section 43 and 45 of the Employment Act, 2007
52.Placing relevance on attaining such threshold, the Court in Alphonse Machanga Mwachanya vs. Operation 680 Limited [2013] eKLR, observed as follows;a.That the employer has explained to the employee in a language the employee understands the reasons why termination is being considered.b.That the employer has allowed a representative of the employee being either a fellow employee or a shop floor representative to be present during the explanation;c.That the employer has heard and considered any explanations by the employee or their representative.d.Where the employer has more than 50 employees, it has complied with its own internal disciplinary procedural rules.
53.The Claimant submitted that where the termination of an employee is based on the reasons of poor performance, the employer must comply with the provisions of section 41 of the Employment Act which require that such an employee should receive an explanation as to such a reason in the presence of another employee of their own choice. The upshot is that the Respondent failed to satisfy the procedural and the substantive tests of termination.
54.On burden of proof, the Claimant submitted that for any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer. This is explicitly provided under section 47 (5) of the Employment Act.
55.The claimant therefore submits that based on the circumstances of his termination the panel should give;a.An Award of general damages for breach of legitimate expectations and breach of contract.b.An Award for 12 months’ compensation for unfair and/or unlawful termination of employment at = Kshs 4,800,00/-c.An Award for 1-month salary in lieu of notice= Kshs 400,000/=d.An Award for unpaid housing allowance (15% Basic salary x 12 months’ x 3/12 Years) Kshs. 1,200,000/=e.An Award for Service Pay 15 days’ salary x 3/12 years of service---Kshs 50,000/=f.A Refund of medical expenses of Kshs 200,000/= incurred.g.An Award for Costs of the suit.h.Interest on (d), (e) and (h) above.i.Such further or other relief as this Honourable Tribunal may deem fit.
The Respondent’s Case
56.The Respondent replied to the Statement of Claim through a Memorandum of Response dated 11th November 2023.
57.The Respondent prayed that the Honorable Tribunal be pleased to dismiss the Claimant’s suit with costs and that the Claimant was not entitled to any of the reliefs sought.The Respondent stated in its submissions THAT;
58.The Claimant entered a contract of service with the Respondent club on 28th June 2023 for a duration of one year ending on 28th June 2024 and that the contract was purposely to offer coaching services to the Respondent.
59.The Claimant was voluntarily released by the Respondent to attend a CAF-'A' License Coaching refresher course that began on the 13th August to 18th August 2023.
60.On 20th August 2023, the Claimant herein whilst engaging in a local legend Tournament and playing for his team Kulundeng Football Club contrary to the Respondent's regulations that a coach shall not engage in any other tournament while on contract, suffered an injury on his left foot.
61.The contract became frustrated since it was not the fault of either of the parties and they could not have reasonably predicted the injury of the Claimant and the above notwithstanding, the contract remained binding until 16th September 2023 when the same was terminated pursuant to clause 15(c) of the contract which stipulated that the contract shall automatically be terminated when-a)The club loses or draws in two consecutive matches;b)The club loses or draws in three separate matches.
62.Under Clause 15(b) of the contract, it was a term of the contract that the contract may be terminated if the coach performance is unsatisfactory based on the assessment of Key Performance Indicators being match results in the FKF league and Tournament and that due to the match results of two consecutive matches, the Claimant's contract was terminated.
63.The suit is premature based on clause 12 of the contract which provides that where a dispute is not settled amicably then a party may refer the dispute to arbitration.
64.The issues for determination by the Tribunal were;a)Whether the Claimant was unlawfully dismissed from employment.b)Whether the Claimant is entitled to damages for breach of contract.c)Whether the Claimant is entitled to 15% basic salary as housing allowance.d)Whether the Claimant is entitled to service pay.e)Whether the Claimant is entitled to a refund of Kshs. 200,000.00 in medical expenses incurred.f)Whether the Claimant is entitled to costs and interest of the suit.g)Whether the Claimant was unlawfully dismissed from employment
65.The Claimant was not unlawfully dismissed from employment. That Clause 15(b) of the contract of employment between the Claimant and the Respondent provided as follows-
66.The Claimant's performance was measured against the matches in the manner appearing on the FKF-PL season 2023/2024 Fixtures. In the first match on 26th August 2023, the result was a draw. The second match was held on 1st September 2023 and the result was a loss. The third match was equally a draw.
67.In applying the words of the contract in the literal meaning of clause 15(b), the Claimant's contract was self-executing. The Claimant knew that if the club loses or draws in two consecutive matches, the contract stands terminated.
68.In the case of Stephen M. Kitheka v Kevita International Limited [2018] eKLR; The Court while commenting on fixed contracts observed as follows-
69.The Claimant's contract was a fixed contract with specific measurables and as such had an ascertained date of expiry. The Claimant was therefore not entitled to notice pay, compensation for unlawful termination or to house allowance since his contract provided for a fixed wage of Kshs. 400,000.
70.The Claimant's contract became frustrated since the Claimant was unable to contract leading to a void contract. In the famous case of Robinson V Davison (1872), the Plaintiff hired the Defendant who was a piano expert for her performance in the show. But on the day of her performance, she was ill. The Court held that it is a contract of frustration because she was not aware that she would become ill.
71.As a result of the injuries suffered by the Claimant, he was unable to execute part of his contract the sale of the top striker notwithstanding. The issue at hand is that the Coach was immobile and as such could not engage the players.
72.The Claimant averred as follows as the reasons for poor performance-a.The injury he suffered had occasionally rendered him absent, making his assistant to take over the Team's preparations.b.The assistant coach was new and had hardly familiarized himself with the playing unit.c.His absence limited his tactical preparations given that he was unable to periodically attend the training and practice sessions so as to introduce and or expand on emerging match winning concepts.d.His absence during such sessions slowed the development and growth of departmental weaknesses that affected the Teams' performance.e.The abrupt sale of the Team's Top scorer to Tanzanian Giants had occasioned a goal drought.
73.The Claimant in his submissions introduced the provisions on the Regulations on status and transfer of players providing for rules for the employment of Coaches. The Claimant proceeded to cite two cases where the Chamber reversed a dismissal of a coach on account of poor performance. In both cases, the chamber severed the articles or clauses providing for dismissal on account of performance from the main contract of the parties.
74.The circumstances leading to the dismissal of the two coaches in the cited authorities were different from the current case. In the present suit the coach himself acknowledged that he was unable to carry out his duties including training and coaching of players, selecting players for matches and competitions and making tactical choices during matches and competitions.
75.The Courts have pronounced themselves on the doctrine of severability. If the contract provides a severability clause, then that is the binding position. If the contract is silent then reference may be made to extrinsic evidence on the intention of the parties.
76.The position was affirmed by the Court of Appeal in Nairobi Civil Appeal No. 224 of 2017 Independent Electoral and Boundaries Commission (IEBC) vs. National Super Alliance (NASA) Kenya & 6 Others (2017) eKLR where a Five-Judge Bench had the following to say: -
77.The Court in the case of Pius Kimaiyo Langat versus Co-operative Bank of Kenya Ltd (2017) eKLR; after reviewing case law on the subject reiterated as follows:
78.Section 43 (1) of the Employment Act, 2007 provides that:
79.The termination of the Claimant was fair based on the claimant's conduct, capacity or compatibility.
80.The Respondent had a valid reason to initiate the disciplinary process of the Claimant. The reasons were based on the Claimant's conduct, capacity and compatibility.
81.In the case of National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR; the Court of Appeal (referring to its previous decisions) said that in determining whether a decision by the employer to terminate is just and equitable, "the adjudicating authority is enjoined to scrutinize the procedure adopted by the employer in reaching the decision to dismiss the employee." It is therefore important to consider whether the Respondent met this second requirement.
82.On the 18th September 2023, the Claimant appeared before the Respondent's Board to explain the poor performance on the matches. The Claimant explained himself and informed the Board that the cause for the poor performance was as a result of the injury sustained. After the hearing, the Claimant was granted another chance by presiding over the match for 23rd September 2023. Unfortunately, the results were a draw and as such his services were terminated.
83.The case of Migori High Court Civil Appeal No. 92 of 2015, James Maranya vs. South Nyanza Sugar Co. Ltd (2017) eKLR, dealt with the issue of the remedies in breach of contracts. The Court observed as follows: -
84.The remedy arising from breach of contract is therefore in the nature of special damages. It is settled that a claim on special damages must be specifically pleaded and proved. (See the Court of Appeal in Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No. 192 of 92 (UR) and Charles C. Sande v Kenya Co-operative Creameries Ltd, NRB CA Civil Appeal No. 154 of 1992 (UR).
85.The Claimant is not entitled to unpaid house allowance and that the Claimant was paid a consolidated salary. Section 31(2)(a) of the Employment Act provides that provision of housing by an employer shall not apply to an employee whose contract of service contains a provision which consolidates as part of the basic wage or salary of the employee, an element intended to be used by the employee as rent or which is otherwise intended to enable the employee to provide himself with housing accommodation.Clause 3(4) of the contract provides that the club will be obligated to provide the coach a monthly salary of Kshs. 400,000.00.
86.The above means that it was the intention of the employer to provide a consolidated pay to the Claimant inclusive of house allowances and other benefits.
87.The Claimant is not entitled to a refund of Kshs. 200,000.00 in medical expenses since the same were catered for by NHIF. Among the documents produced by the Claimant was an invoice from Ladnan Hospital which shows that the bill was settled by NHIF.
88.That costs follow the event. We urge the Court to dismiss the suit against the Respondent with costs.
The Respondent’s Evidence
89.The Respondent replied to the Statement of Claim through a memorandum of response dated 11th December 2023 and prayed that the Honourable Tribunal be pleased to dismiss the suit with no cost and that the Claimant was not entitled to any of the reliefs sought.
90.The Respondent also filed a witness statement by one Steven Nsongo dated 9th February 2024 enumerating reasons as to why the Claimant’s contract was terminated, the main reason being the losing and drawing of two consecutive matches.
91.The witness statement also provided that the suit was premature based on Clause 12 of the Contract which provides that where a dispute is not settled amicably then a party may refer the dispute to arbitration.
92.Mr Nsongo stated that whenever a Coach is injured, he must report to the team’s doctor who in turn relays the same to the CEO then to the Executive Board and that out of his own knowledge he knew the Claimant was injured while participating in a tournament featuring for Kulundeng Fc’
93.He further stated that the Claimant’s hearing was fair because the team’s Board gave him a chance against AFC Leopards. The Coach is not obligated to engage in matters involving the Kenya Police Youth Team and that the selling and buying of players during a transfer window does not affect the performance of a team.
94.On cross-examination, Mr. Nsongo stated that The Respondents do not employ civilians in the team and only contract civilians for some services. Therefore, the Respondent was only contracted to offer coaching services. He clarified that when an ordinary police officer is to be terminated from employment, he or she must undergo a thorough disciplinary procedure and the National Police Service does not employ any one on contract basis.
V. Analysis And Decision
Issues for Determination
95.The panel having read the parties’ pleadings, the documents produced, the witness statements and having heard the parties as well as read their written submissions, determines that the issues for determination are: -I.Whether the tribunal has jurisdiction to hear and determine this case. Depending on the outcome of (I) above: -II.Whether termination of the claimant’s contract was unfair or unlawful.III.Depending on the determination on the issue above, what is the appropriate award to the claimant?
I. Whether the tribunal has jurisdiction to hear and determine this case.
96.The jurisdiction of this tribunal stems from section 58 of the Sports Act which provides as follows:
97.Section 59 of the Sports Act states further that:
98.The current dispute stems from a contract dated 23rd June 2023 entered between the claimant and the respondent. The claimant is unhappy because the respondent terminated this contract allegedly without lawful cause.
99.This being a claim arising from a Coach who had been contracted by a football club we find that the dispute falls within the definition of section 58(b)as “other sports related disputes”. However, section 58 (b) cannot be fully invoked if all parties in the dispute did not consent to the Tribunal’s jurisdiction and if the tribunal did not agree to hear the claim.
100.This Was Well Explained by this Tribunal in Denis Kadito v Sofapaka FC (SDTAppealNo 23 of 2016). The tribunal grappled with section 58 (b) of the Sports Act. This is what the Tribunal said:
101.Clause 12 of the contract between the claimant and the respondent Provides:a.The Parties shall use their best efforts to settle amicably any dispute arising from or in connection with this contract or the interpretation thereof.b.If the dispute has not been settled amicably within thirty (30) days from when the dispute resolution process was instituted, any Party may elect to commence arbitration. Any dispute that may arise regarding this contract or the interpretation of the terms and conditions hereof shall be formally reported in writing to the relevant FKF Independent disciplinary body for arbitration. In case neither party is satisfied with the decision of such a body, then the matter will be referred to the Sports Tribunal as per the existing structures.
102.Clarity is continued in a provision which states that, ‘Any dispute that may arise regarding this contract or the interpretation of the terms and conditions hereof shall be formally reported in writing to the relevant FKF Independent disciplinary body for arbitration. In case neither party is satisfied with the decision of such a body, then the matter will be referred to the Sports Tribunal as per the existing structures.’
103.In his list of documents dated 21st of November 2023 and supplementary list of documents, the Claimant produced the email and letter as Claimant’s exhibits 2 and 14 respectively. Efforts of his Advocates on record to seek for the intervention of the said body failed to yield into fruition and as candidly provided for in the contract, he sought for the intervention of this Honorable Tribunal.
104.The question of jurisdiction was determined in the celebrated case of Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1 where the Court stated that: -
105.We have scrutinized the contract and the relevant provisions including clause 12 and concur that this honorable court’s jurisdiction has been properly invoked.
II. Whether termination of the claimant’s contract was unfair or unlawful.
106.The Claimant was hired by the Respondents to serve as Coach and while undergoing his refresher courses, he unfortunately raptured his left Achilles tendon due to sudden dorsiflexion of his plantarflexed left foot.
107.The FIFA Regulations on the Status and Transfer of Players (Regulations) 2023 defines a Coach: an individual employed in a football-specific occupation by a professional club or association whose:i.employment duties consist of one or more of the following: training and coaching players, selecting players for matches and competitions, making tactical choices during matches and competitions; and/orii.employment requires the holding of a coaching License in accordance with a domestic or continental licensing regulation.
108.Annex 2 of the Regulations on Status and Transfer of Players provides for Rules for Employment of Coaches. It goes ahead to provide as follows;1.This annex lays down rules concerning contracts between coaches and professional clubs or associations.2.This annex applies to coaches that are:a)paid more for their coaching activity than the expenses they effectively incur; andb)employed by a professional club or an association.3.This annex applies equally to football coaches.4.Each association shall include in its regulations appropriate means to protect contractual stability between coaches and clubs or associations, paying due respect to mandatory national law and collective bargaining agreements5.In Respect of contracts; ‘A contract may only be terminated upon expiry of its term or by mutual agreement.’
109.The Claimant’s unforeseen injury indeed defeated or compromised his effective performance of duties that included training and coaching players, selecting players for matches and competitions, making tactical choices during matches and competitions as defined by FIFA statutes.
110.A pertinent issue which arose during the hearing was the place of the injury. The Claimant alleged that it was during the refresher course between the period of 13th to 18th August 2023 while the Respondent's witness stated that the same occurred on 20th August 2023 when the Claimant was playing for the Kulundeng Tournament
111.Clause 15 of the Contract of Employment provided that;b)This contract may be terminated if the Coach’s performance is unsatisfactory based on the assessment of key performance indicators. The Club shall terminate the Coach’s contract on unsatisfactory performance by mutually terminating this contract. The Clubs’ executive Committee holds the mandate to determine whether a Coach’s performance is satisfactory or not. Performance will be determined from match results in the FKF League and tournament.c)This contract shall be automatically terminated when the club loses or draws in two consecutive matches. Also, when the Club loses or draws in three (3) separate matches, the contract stands terminated forthwith.e)The Coach shall be subjected to the Clubs disciplinary procedure before termination
112.Clause 4 and 5 of the Regulations on Status and Transfer of Players provides for Rules for Employment of Coaches provides only two instances where a coach’s contract may be terminated.4-Terminating a contract with Just Cause5-Terminating a contract with just cause for outstanding salaries.
113.FIFA's Player Status Committee has often affirmed that coaches are subject to the same long-standing legal precedent regarding player discharge for subpar performance. FIFA's jurisprudence about a coach's (or, more accurately, the team they are responsible for) athletic performance in and of itself is not a legitimate basis for withholding salary that is due or for terminating an employment agreement because this is a wholly subjective and unilateral assessment. A clause that allows a coach's employer to cancel a contract due to poor performance is subjective and can only be evaluated by one party.
114.Consequently, because of the unequal bargaining power between the employer and the employee and the restrictions it imposes on the latter's rights, such clauses cannot be upheld.
115.Only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit the expectation that the continuation of the employment relationship between the parties can continue, a contract may be terminated prematurely.
116.An employer must adopt less stringent steps before ending an employment contract if they are necessary to guarantee that the employer fulfills his contractual obligations.
117.The Claimant averred that Clause 15 of the employment contract should not be taken into consideration in order to justify a termination due to its potestative nature, in-so far as it refers only to the coach’s performance. A condition is purely potestative when its fulfillment depends on nothing more than the exercise of the will of the obligor - that is, where, because of the condition, no limitation is imposed on the obligor's legal freedom
118.In REF FPSD-3899 Decision of the Players’ Status Chamber passed on 25th January 2022 regarding an employment-related dispute concerning the coach Saturnin Ibela Ignambi it was held as follows;23.Furthermore, the Single Judge recalled that a coach’s unsatisfactory performance per se cannot be a valid reason for an employer to cease paying due salaries or terminate an employment contract, as this is a purely unilateral and subjective evaluation by the club.24.Subsequently, the Single Judge referred to the jurisprudence related to potestative clauses, i.e. clauses dependent on an event which can only be triggered by one of the contractual parties and upon the latter’s wish. Such potestative clauses can in general not be applied, as they limit the rights of the contractual counterparty in an excessive manner and lead to an unjustified disadvantage of the latter.25.Bearing in mind the foregoing and analyzing the particular circumstances of the present case, the Single Judge concluded that clause 12 of the contract is of a clearly potestative nature as it leaves the decision of terminating the employment contract at the sole discretion of the club, provided that the same club assesses the performance of the coach as unsatisfactory. By examining the contents of such clause, the Single Judge noted that it is not reciprocal because only the club was entitled to fire the coach on account of objectives not met.26.In spite of the fact that the aforementioned clause is included in a valid employment contract voluntarily signed by both parties, the Single Judge acknowledges the usual imbalance in the bargaining power of the employer and of the employee and therefore decided that such clause has a clearly abusive nature and shall not have any legal effect in the relevant employment relationship.27.On account of the aforementioned, the Single Judge decided that the club had unlawfully terminated the employment contract with the coach and should be held liable for such breach.
119.Section 35 (1) (c) of the Employment Act, 2007, provides: -Section 35 (4) provides:
120.Sec 43. (1) of the Employment Act provides that, ‘In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45 under the corresponding provisions of that section.’’
121.This section obligates an employer to prove the reasons for termination of Employment and where the employer fails to do so, the termination will be deemed to have been unfair.
122.The above provisions must be read with the Constitution of Kenya, more specifically those that relate to fair hearing and fair labour practices. The postulations of the Fair Administrative Actions Act, too
123.Clause 15 of the Contract of Employment provided that;b)This contract may be terminated if the Coach performance is unsatisfactory based on the assessment of key performance indicators. The Club shall terminate the Coach’s contract on unsatisfactory performance by mutually terminating this contract. The Clubs’ executive Committee holds the mandate to determine whether a Coach’s performance is satisfactory or not. Performance will be determined from match results in the FKF League and tournament.c)This contract shall be automatically terminated when the club loses or draws in two consecutive matches. Also, when the Club loses or draws in three (3) separate matches, the contract stands terminated forthwith.d)The Coach shall be subjected to the Clubs disciplinary procedure before termination
124.During the hearing, the Claimant and the Respondent’s witnesses confirmed that no disciplinary procedure was followed in consonance to what the Contract dictates.
125.It is now settled law that before an employer terminates an employee the termination must meet the threshold of: -a.Procedural fairness as stipulated in section 41 and section 45 of the Employment Act, 2007b.Substantive justification on the reasons for termination must be demonstrated by the employer as stipulated in section 43 and 45 of the Employment Act, 2007.
126.Pursuant to provisions of section 45 of the Employment Act, 2007:1.No employer shall terminate the employment of an employee unfairly.2.A termination of employment by an employer is unfair if the employer fails to prove—a.that the reason for the termination is valid;b.that the reason for the termination is a fair reason—i.related to the employee’s conduct, capacity or compatibility; orii.based on the operational requirements of the employer; andiii.that the employment was terminated in accordance with fair3.An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated.4.A termination of employment shall be unfair for the purposes of this Part where-a.the termination is for one of the reasons specified in section 46; orb.it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.5.In deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, a labor Officer, or the Industrial Court shall consider(a)the procedure adopted by the employer in reaching the decision to dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision;(b)the conduct and capability of the employee up to the date of termination;(c)the extent to which the employer has complied with any statutory requirements connected with the termination, including issuing of a certificate under section 51 and the procedural requirements set out in section 41;(d)the previous practice of the employer in dealing with the type of circumstances which led to the termination; and(e)the existence of any previous warning letters issued to the employee
127.In Janet Nyandiko versus Kenya Commercial Bank Limited[2017] elk, the Court summarized those procedures as follows: -
128.The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.”
129.For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer. This is explicitly provided under section 47 (5) of the Employment Act and thus find that the Claimant has on a balance of probability demonstrated that he was unfairly terminated
130.We therefore find that the Respondents are in breach of their obligations and unlawfully terminated the Claimant’s contract.
III. Award for compensation
131.In making An Award for compensation, the court is guided by the provisions of Section 49 of the Employment Act, 2007.
132.In the case of Alphonce Maghanga Mwachanya v Operation 680 Limited [2013] eKLR, the Court held that in determining An Award of compensation, the court is to consider the 13 factors set out under Section 49 (4) of the Employment Act.
133.Section 49(1) of the Employment Act, 2007 provides:1.Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following –a.the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;b.where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract.; orc.the equivalent of a number of months’ wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.”
134.It thus provides the remedies that an employee is entitled to in case of either wrongful dismissal or unfair termination and may award damages that are capped by Section 49 of the Employment Act to a maximum of twelve months of the employee’s gross monthly wage at the time of the termination of his employment.
135.The power to award the remedies provided for under Section 49 of the Act is discretionary. Judicial discretion must however be exercised judiciously, and in the words of the Court in Kenya Revenue Authority & 2 others v Darasa Investments Limited [2018] eKLR (Civil Appeal No. 24 of 2018):
136.In a Claim for unfair termination, am employee has a low threshold burden to discharge before the employer’s reasons and evidence for termination are evaluated. It is the opinion of the panel that this burden has been discharged by the Claimant to their reasonable satisfaction. Section 35(1)(c) of the Employment Act, 2007 envisages advance 28 days written notice of termination of employment, for employees paid by the month like in the present case. The Claimant in this case was not issued with such a notice. There was also no payment in lieu of notice.
137.Was there breach of such fundamental obligation in the contract of service to warrant dismissal in such a manner? The essentials of procedural fairness were adumbrated in Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd (2013) eKLR, where it was observed that;Section 41 of the Employment Act, 2007 has now made procedural fairness part of the employment contract in Kenya. Prior to the enactment of the Act, the right to a hearing was not part of the employment contract unless it was expressly incorporated into the contract by agreement/staff manuals or policies of the parties or through regulations for public entities.An employer was free generally to dismiss for a bad reason or a good reason but on notice or payment in lieu of notice. The employer could even dismiss for no reason at all. There was no obligation to notify or listen to any representations by the employee.The law was very harsh on employees. I believe this could have been one of the factors which led to incorporating what has long been referred to in administrative law as the rules of natural justice and embodied in the Latin maxim audi alteram partem rule into the employment contract. Whatever the reasons, the Employment Act, 2007 has fundamentally changed the employment relationship in Kenya.And what does section 41 of the Act require. The first observation is that the responsibility established is upon the shoulders of the employer. In a claim for unfair termination or wrongful dismissal on the grounds of misconduct, poor performance or physical incapacity, it is the employer to demonstrate to the Court that it has observed the dictates of procedural fairness.The ingredients of procedural fairness as I understand it within the Kenyan situation is that the employer should inform the employee as to what charges the employer is contemplating using to dismiss the employee. This gives a concomitant statutory right to be informed to the employee.Secondly, it would follow naturally that if an employee has a right to be informed of the charges he has a right to a proper opportunity to prepare and to be heard and to present a defence/state his case in person,writing or through a representative or shop floor union representative if possible.Thirdly if it is a case of summary dismissal, there is an obligation on the employer to hear and consider any representations by the employee before making the decision to dismiss or give other sanction.The challenge by Claimant herein goes to and beyond the basic essentials or frontiers of procedural fairness as stated in the above decision.
138.Was the Claimant informed of what formed the basis of his meeting with the board and if so in what manner? Was he required to make a response, and invited to an oral hearing to make his representations? Was he accorded reasonable opportunity to prepare and make representations; witnesses were called? Thorough investigations were carried out? The panel must and has evaluated his challenges to the procedural fairness of the process, and the Panel is not satisfied that the conduct of the Respondent was proper.
139.An employer must commence disciplinary proceedings without any biases, and be ready to listen to and consider any representations to be made by the employee. More so when there was no written invitation to a hearing. Advance and reasonable notice ought to be given, to allow an employee to prepare psychologically.
140.From the happenings of 18th September 2023 to 28th September 2023, the panel sees ill motive and actions that are not in consonance with statutory requirements of procedural fairness. It was not in accordance with justice and equity as envisioned by Section 45 (4) b of the Employment Act and the dismissal was therefore procedurally unfair.
141.Because of the conclusion above, and considering the mandatory nature of the requirements of section 41 of the Employment Act, 2007, it is not necessary, in the view of the panel to consider whether the Respondents have discharged the burden placed on employers by sections 43 and 45 of the Employment Act, 2007.
Conclusion And Orders
142.The Panel finds and holds that the dismissal of the Claimant was procedurally unfair and declares that;I.The Respondent is in breach of Contract with the Claimant;II.The Respondent’s termination/ dismissal of the Claimant’s employment was illegal/unlawful and/or unfair;III.The Respondent is Ordered to pay the Claimant wages for September 2023 to June 2024 amounting to Kshs. 3,600,000/=;IV.The Respondent to pay one month’s pay in lieu of notice at Kshs. 400,000/=;V.Claimant to have costs.
DATED AT NAIROBI THIS 4TH DAY OF JUNE 2024 ........................ELYNA SHIVEKA - PANEL CHAIRPERSON MR. GABRIEL OUKO - MEMBER. MR. ALLAN MOLA - MEMBER