[2021] KEELRC 1926 (KLR)
The court found that the Respondent substantially complied with the procedural requirements of section 41 of the Employment Act, 2007, by issuing a show-cause letter and providing the Claimant an opportunity to respond. On substantive fairness, the court determined that the Claimant's actions—specifically, the...
Source-derived case information.
- Citation
- [2021] KEELRC 1926 (KLR)
- Parties
- Claimant: John Okoth Ochieng; Respondent: Kibos Sugar & Allied Industries Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 259 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed with costs
- Legal Topics
- Unfair Termination, Procedural Fairness, Substantive Fairness, Employment Contracts, Remedies for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Okoth Ochieng
Claimant
Kibos Sugar & Allied Industries Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair under the Employment Act, 2007.
- 2 Whether the Respondent complied with procedural and substantive fairness requirements in terminating the Claimant.
- 3 Whether the Claimant is entitled to compensation or other terminal benefits including overtime, gratuity, house allowance, leave days, and severance pay.
Ratio Decidendi
The court found that the Respondent substantially complied with the procedural requirements of section 41 of the Employment Act, 2007, by issuing a show-cause letter and providing the Claimant an opportunity to respond. On substantive fairness, the court determined that the Claimant's actions—specifically, the unauthorized preparation and issuance of delivery notes—constituted dishonesty and provided a valid and fair reason for termination. The Claimant failed to establish entitlement to overtime, gratuity, house allowance, leave days, or severance pay, either by lack of evidence or by operation of law. Consequently, the court dismissed the claim in its entirety with costs to the Respondent.
Court Disposition
claim dismissed with costs
Orders
- The Cause is dismissed with costs to the Respondent.
- The Claimant should collect accrued leave dues from the Payroll Manager as previously advised by the Respondent.
Full Case Text
Judgment text and source record
55 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 259 OF 2015
JOHN OKOTH OCHIENG........................................................................CLAIMANT
v
KIBOS SUGAR & ALLIED INDUSTRIES LTD...............................RESPONDENT
JUDGMENT
1. This Cause was heard on 20 July 2017 when John Okoth Ochieng (the Claimant) testified and closed his case, after which Kibos Sugar & Allied Industries Ltd (the Respondent) sought an adjournment.
2. The Respondent's first witness testimony was taken on 9 July 2018, and the hearing was adjourned to enable it to present the second witness. However, the Respondent sought adjournment severally to secure the second witness's attendance, but he was never presented.
3. The Court declined another application for adjournment by the Respondent on 15 December 2020, forcing the Respondent to close its case.
4. The Claimant’s submissions were not on file (should have been filed/served before 15 January 2021). The Respondent’s submissions were also not on file (should have been filed/served before 15 February 2021).
Unfair termination of employment
Procedural fairness
5. The Respondent employed the Claimant as a Field Harvesting Officer in January 2012.
6. On 29 April 2014, the Respondent served the Claimant with a show-cause notice. The letter also put the Claimant on 21 days suspension.
7. The Claimant stated that on or around 19 June 2014, the Agricultural manager called him to attend a disciplinary hearing but upon reporting, a hearing was not conducted and that instead, he was reinstated and deployed to Control Office.
8. According to the Claimant, the next day, at around 2. 30 pm, he was given a letter terminating his employment by the Human Resources Manager.
9. The Claimant asserted that the termination was unfair because he was not afforded an opportunity to make representations.
10. The Respondent issued a show-cause to the Claimant on 29 April 2014. The show-cause set out the allegations the Claimant was required to respond to, and he was given 24 hours within which to respond.
11. The Claimant did not allege or prove that the 24 hours was not sufficient.
12. The Court finds that the Respondent was in substantial compliance with the requirements of section 41 of the Employment Act, 2007 on procedural fairness.
Substantive fairness
13. In terms of sections 43 and 45 of the Employment Act, 2007, the Respondent had the burden of not only proving but proving as valid and fair the reasons for terminating the Claimant’s employment.
14. In an endeavour to discharge the burden, the Respondent called 1-witness, the Human Resources Manager.
15. The reasons which were given for terminating the Claimant’s employment were: issuing a delivery note no. 313731 dated 19 February 2014 to a farmer for a non-existent cane; issuing a delivery note no. 313722 dated 18 February 2014 to a wrong farmer and leaving delivery notebook serial no 315900 – 315949 with third parties without authorisation.
16. The Respondent produced copies of the delivery notes and letters of complaint from the affected farmers.
17. The Claimant conceded in his examination in chief that his duties included preparation of delivery notes but denied that he made the entries in the delivery note dated 19 February 2014.
18. The Claimant admitted that he prepared the delivery note dated 18 February 2014 and that it was not on the allocation program for cane delivery for that day.
19. However, the Claimant explained that he prepared the delivery note after consultation with the cooperative society to which the farmer(s) belonged.
20. In the view of the Court, what the Claimant did was not sanctioned by the Respondent. It was an act of dishonesty, and it was a valid and fair reason to terminate his employment. The Court so finds.
21. Consequently, compensation as a remedy does not apply.
Breach of contract
Overtime
22. The Claimant did not disclose either in the witness statement or during oral testimony the working hours agreed with the Respondent beyond which he would be entitled to overtime pay.
23. Having failed to lay an evidential basis for this head of the claim, relief is declined.
Gratuity/service pay
24. A copy of a payslip produced by the Claimant shows that he was a contributing member of the National Social Security Fund.
25. Under section 35(5) & (6) of the Employment Act, 2007, the Claimant is not entitled to service pay. If there was any other basis for gratuity, it was not proved.
26. Relief is declined.
House allowance
27. The Claimant’s payslip indicates that he was earning a house allowance. Nothing turns on this head of the claim.
Leave days
28. The Respondent informed the Claimant that he would be paid accrued leave days and requested that he collect the same from the Payroll Manager. He should collect the dues.
Severance pay
29. The Claimant did not separate with the Respondent on account of redundancy, and severance pay is not available to him.
Conclusion and Orders
30. From the foregoing, it must have become apparent that the Cause has no merit. The Court so finds, and it is dismissed with costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN NAIROBI ON THIS 31ST DAY OF MARCH 2021.
RADIDO STEPHEN,MCIARB
JUDGE
APPEARANCES
For Claimant Nyanga & Co. Advocates
For Respondent Onsongo & Co. Advocates
Court Assistant Chrispo Aura