[2022] KEELRC 1405 (KLR)

Kamau v Kuku Food Kenya Limited (Cause 5 of 2020) [2022] KEELRC 1405 (KLR) (30 June 2022) (Judgment)

Neutral citation: [2022] KEELRC 1405 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nakuru

Cause 5 of 2020

HS Wasilwa, J

June 30, 2022

Between

Virginia Njeri Kamau

Claimant

and

Kuku Food Kenya Limited

Respondent

Judgment

1. The Claimant sued the Respondent vide her Memorandum of claim dated 29th January, 2020 for alleged unfair termination and to be compensated for the unfair termination.

2. The background of this claim is that the Claimant was employed by the Respondent sometimes in December, 2011 and worked for the Respondent rising through the ranks to be the General Manager of the Respondent’s and deployed to Nakuru Branch in 2017 while earning a salary of Kshs. 101, 236. 44. She held this position till her termination on 30th September, 2019.

3. The Claimant avers that as the General Manager of the Respondent she would work till 10 pm and at that time most shops within Nakuru are closed and therefore unable to buy household supplies for her household.

4. It is averred that, on the 17th September, 2019, the Claimant bought an uncut chicken on her way to work and in order to keep it fresh, she stored it in the Respondent’s deep freezer as she waits for evening to take it home, unfortunately on the very day at around 12 noon, the Respondent’s four field trainers visited he Claimant place of work and conducted random inspection and discovered the said chicken in the freezer.

5. The next day on the 18th September, 2019, the Claimant was served with a Notice to show cause why disciplinary action should not be taken against her for deliberate and intentional abuse of company property by placing unapproved ingredients in the store including frozen uncut chicken in the freezer among other in contravention of the company’s rules and regulations.

6. On 26th September, 2019 the Claimant was charged with offense of deliberate and intentional abuse/damage of company property and required to appear for disciplinary hearing the next day in the Respondent headquarters in Nairobi as such given only a few hours to respond to the charges and travel to appear for the disciplinary hearing.

7. The Claimant was heard and verdict delivered on the 30th September, 2019 to the effect that the Claimant was discharged of her responsibilities. She appealed against the Respondent’s decision to the Regional Human Resource manager who upheld the decision of the disciplinary committee and dismissed her appeal.

8. The Claimant avers that the termination was unfair for the reason that she was not given time to response as provided for under clause 2. 6.1 of the Respondent’s Human Resource Handbook which provides for at least 5 days’ notification before hearing. That she was not given particulars of the offense and what she was charged with was for bringing food stuff from outside which is under category 2 of misconduct which does not attract termination however the Respondent framed the charges as destruction of the Respondent’s property which particulars did not match any destruction of property. Her email was deactivated before she was heard by the Respondent as such the termination was premeditated.

9. She avers that the termination was discriminatory in that the general manager in charge of Hurligham Branch was never fired when a similar incident had occurred on their branch in 2018.

10. She therefore prays for the following reliefs; -a)A declaration that the Claimant’s dismissal was discriminatory, unfair and unlawful.b)Kshs. 101, 236. 44 being 1-month salary in lieu of Notice.c)Kshs 1,214,837. 28 being compensation for unfair and wrongful dismissal at the rate of 12 months’ gross salary in terms of section 49(1)(c) of the Employment Act,2007. d)General damages for discrimination.e)Costs of this suit.f)Interest on (b) – (e) above.g)A certificate of service under section 51 of the Employment Act.h)Any other further relief that this Court may deem fir to grant in the peculiar circumstances of this case.

11. The Respondent entered appearance on 21st February, 2020 and filed a response to claim on the 9th March, 2020 admitting to employing the Claimant on 5th December, 2011 and subsequently promoting her to the position of the manager at the salary scale stated.

12. The Respondent avers that its field manager on their routine supervision on 17th September, 2019, discovered unapproved ingredients at the restaurant where the Claimant was in charge including uncut chicken stored in the Respondent’s deep freezer contrary to the rules and regulations and then served the Claimant with a notice to show cause which the clamant replied to on the 18th September, 2019 admitting via email to storing the said chicken in the freezer contrary to the company’s rules.

13. It is averred that a notification was served upon the Claimant on the 25th September, 2019 for hearing on the 27th September, 2019. In the said notification, the Claimant was informed of her rights. It is also stated that during hearing the Claimant was informed of the conflict of interest in storing the said chicken in the Respondent’s freezer, which could have been used by another employee in preparing a customers Order, which might have created a health hazard for their customers resulting to legal suits and possible loss to the Respondent.

14. It was argued that the level of negligence exhibited by the Claimant could have landed the Respondent to serious issue with its clientele and costed them its reputation as a company.

15. It is averred that upon termination, the Claimant was paid her terminal dues being annual leave days not take of 35. 75 days equal to Kshs 118,855. 17 and public holidays accrued but not taken of 9 days of Kshs 29,921. 58 minus statutory deduction. As such the Claimant was paid Kshs 109,147. 43. Therefore, that the claim herein is not warranted and they prayed for the same to be dismissed with costs.

Hearing. 16. The Claimant testified as CW-1 and adopted her witness statement dated 30. 1.2020 and produced the documents dated 29. 1.2020 as her exhibits an in addition stated that she was paid her salary and terminal dues.

17. Upon cross examination by Kasmi Advocate, the Claimant testified that she was the manager of the Respondent’s Nakuru branch and trained in management. She avers that she received the charge sheet on the 26th September and was required to appear for disciplinary hearing on the 27th September, 2019 as such the time given was too short. She testified that the offense in the show cause was conflict of interest when the actual offense was bringing uncut frozen chicken and storing in the Respondent’s freezer which was tantamount to bringing food stuff from outside which was under category 2 of misconduct and did not attract termination as a punishment. She stated that she only took the chicken for storage purposes and not for cooking. She stated that she felt discriminated against because there was an incident in Hurligham in 2018 where the manager had stored lettuce in the fridge and nothing was done to him.

18. On re-examination the witness testified that the offense she was charged with was conflict of interest however the termination was on deliberate abuse of company’s property which was never substantiated as such the show cause offense and the offense she was charged with were different.

19. The Respondent called its regional Human Resource Officer, Joyce Chege as RW-1 who adopted her witness statement dated 6. 3.2020 and produced the documents as Respondent exhibits. In addition, she stated that she was informed of the incident of 18th September, 2019 by Evans Masinde.

20. Upon cross examination by Ekesa Advocate, the witness testified that the Claimant was served on 25th September, 2019 and if she needed more time she could have requested for the same. She testified that the Claimant was dismissed for abuse of company property in that she deliberately stored a frozen uncut chicken in the Respondent’s freezer. She stated that conflict of interest was not the main charge. On the discrimination issue the witness testified that the Hurligham manager had not committed a similar offense and that the said manager was allowed to buy lettuce for the customers’ consumption and the only issue was the buying of lettuce from a different supplier.

21. On re-examination, the witness testified that the offense the Claimant was charged with was deliberate damage and abuse of company property which was under category 1 offense and cause for termination.

Claimant’s submissions. 22. The Claimant submitted on two issue; whether the Claimant’s termination was discriminatory, unfair and wrongful and whether the Claimant is entitled to the reliefs sought.

23. On the first issue, the Claimant cited a plethora of case including the case of Emmanuel Mmabo Oduory v One acre Fund [2020] eKLR where the Court held that;-“Under Section 45 of the Employment Act, the employer must not only prove that the reason for termination is valid and fair but also that the employment was terminated in accordance with fair procedure as under Section 41 of the Employment Act. In the case of Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR, Mbaru J. held:“Invariably therefore, before an employer can exercise their right to terminate the contract of an employee, there must be valid reason or reasons that touch on grounds of misconduct, poor performance or physical Incapacity. Once this is established the employee must be issued with a notice, given a chance to be heard and then a sanction decided by the Respondent based on the representation made by the affected employee. It is now established best practice to allow (or an appeal to such an employee within the internal disputes resolution mechanism and with due application of the provisions of section 5(7) (c) of the Employment Act. Where this procedure is followed an employer would have addressed the procedural requirements outlined under section 41 and any challenge that an employee may have would be with regard to substantive issues only.”In the case of Walter Ogal Anuro v Teachers Service Commission [2013] eKLR the Court held that for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.”

24. It was submitted that the act of bringing the uncut chicken and storing in the Respondent’s freezer was an act of bringing of foodstuffs and drinks from outside the premises, a misconduct under category 2 misconduct in clause 2. 4.2 of the Respondent’s Handbook which does not attract termination as a punishment, however the Respondent determined to terminate the services of the Claimant charge her with offense which particulars does not match as such charging her for offense under category 1, gross misconduct and terminated her services.

25. It was submitted that the Claimant was only issue with a charge sheet which did not have sufficient particulars to enable the Claimant properly response to the charge. Further that the charge sheet was served a day before the hearing and therefore the Claimant was not given sufficient time to respond and attend hearing. She was also not informed of the need to have a fellow employee in attendance during the disciplinary hearing. It was argued that the Claimant was discriminated against because a similar incident had occurred in 2018 in Hurligham branch but no action was taken against the said manager. To support her argument the Claimant relied on the case of Mathias Omondi Nzuya v Reli Co-operative Savings & Credit Society [2022] eKLR where the Court held that;-“By reason of the foregoing premises, this Court comes to a compelling conclusion that the termination was procedurally unfair. The Claimant was denied an opportunity to defend himself adequately, he was denied better particulars and time to prepare for his defence, he was terminated on an account, which was not part of the accusations on the “charge sheet”, which account required a separate process undertaken pursuant to the provisions of section 41 of the Act, and the termination letter in content did not flow from the verdict section of the disciplinary committee minutes.”

26. The Claimant in conclusion submitted that she has proved her case on a balance of probability and urged this Court to allow the claim as prayed.

Respondent’s Submissions. 27. The Respondent on the other hand submitted that the actions of the Claimant of storing untested chicken in its freezer was against the Company’s policy and an act that was tantamount to gross misconduct which Respondent ought to have summarily terminated the Claimant’s however that the Claimant was given ample time to explain herself and issue with a show cause letter, then invited for disciplinary hearing however her explanation was not satisfactory leading to her termination.

28. The Respondent submitted that the reason for termination was well stated and even admitted by the Claimant. Also that the Claimant was subjected to due process as such the termination was justified. In this the Respondent relied on the case of Anthony Mkala Chitavi v Malindi Water and sewerage Co. Limited where the Court held that ;-“…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.”

29. The Respondent submitted that the Claimant was charged with offense of Deliberate/intentional abuse/damage of the company property, in that she admitted using the Respondent’s freezer for the purpose which it was not meant to as such abusing the company property, which was one of the offenses under category 1 and attract the penalty of termination. It was submitted that the offense was considered especially in relation to the position the Claimant was holding in the Respondent’s employ, her being the manager of the Respondent’s Nakuru Branch.

30. On the discrimination pleaded, it was submitted that Hurligham case was different from the Claimant case, because as much as the lettuce was purchased by the manager from unapproved vendor the same was used to serve customers unlike the Claimant’s which was bought for personal use. Therefore, that the Hurligham case is not a case of abuse of property because the lettuce was stored in the fridge for customer’s consumption. It was further denied that the Claimant’s termination was premediated.

31. On the reliefs sought, it was submitted that the Claimant was paid all her terminal dues of Kshs.109,147. 43 as such not entitled to any money sought.

32. The Respondent then urged this Court to disallow the claim with costs.

33. I have examined the evidence and submissions placed before me. The Claimants contention is that though she was found with some uncut chicken stored in Respondent’s freezer contrary to rules she was not given an opportunity to defend herself.

34. She avers that she was served with a charge sheet on 26th September and expected to appear for disciplinary action on 27th September and so the time was short and inadequate as per the employee handbook.

35. The Claimant indicated that the handbook provides for at least 5 days notice before a disciplinary hearing.

36. The Claimant did not however point out the section in the employee handbook that provides for this.

37. Other than issue of time, the Claimant submit that she was charged under category 1 of gross misconduct as provided under Section 2. 4 of the employee handbook whereas her misconduct fell under 2. 4.2 which misconduct does not lead to dismissal.

38. Section 2. 4.2 is on the employee misconduct and bringing foodstuff and drinks from outside the premises fall in this category.

39. The Claimant was however charged with deliberate or intentional abuse/damage of company property.

40. The facts indeed did not tally with the charge and if indeed the Respondents had considered their own employee handbook, they would have found Claimant guilty of a misconduct not warranting dismissal.

41. In the circumstances, I find the dismissal of the Claimant unfair and I award her as follows;1. 1 month salary in lieu of notice = 101,236. 44/=2. 8 months salary as compensation for the unfair termination= 8 x 101, 236. 44 = 809,891. 52/=TOTAL = 911,128/=Less statutory deductions3. The Respondents will issue Claimant with a certificate of service.4. The Respondents will pay costs of this suit plus interest at Court rates with effect from the date of this Judgment.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 30TH DAY OF JUNE, 2022. HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:Kasimu holding brief for Wangai for Respondent – presentMiss Ekesa for Claimant – presentCourt Assistant - Fred