[2001] KEELRC 13 (KLR)

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.,

A.K. Kerich & H.B.N. Gicheru, Members.)

CAUSE NO.8 OF 1999.

KENYA PLANTATION & AGRICULTURALWORKERS’ UNION.......................Claimants.

-v –

DEL MONTE KENYA LTD.........................................................................Respondents.

Issue in Dispute:-

“Dismissal of Mr. Simon Kimatu Malusi”.

F.K. Waweru, Deputy Secretary General, for the Claimants (hereinafter called the Union.)

L.W. Kariuki, Senior Executive Officer, F.K.E., for the Respondents (hereinafter called the Company.)

A W A R D.

The Company are a multinational limited liability concern whose main business is that of growing pineapples and processing the same for internal and external markets. The parties have a recognition agreement and have also entered into several collective agreements which regulate the terms and conditions of service of the unionisable employees in the plantation sector or section of the Company. The present dispute arose as a result of the dismissal of Mr. Simon Kimatu Malusi (hereinafter called the grievant) on 25th May 1993, allegedly for theft of four(4) new canvas trousers and one(1) knife, belonging to the Harvesting Department of the Company.

It was the case of the Union that the dismissal of the grievant was wrongful and prayed that he be paid all his terminal benefits and compensation forwrongful dismissal and loss of employment; while, on the other hand, the Company contended that their decision to dismiss the grievant was justified and urged the Court to uphold it.

The parties met at their own level to resolve the matter but no amicable settlement was reached. On 29th March 1994, the Union reported a formal trade dispute to the Minister for Labour who accepted the dispute and appointed Mr. A.N. Kiarie of Thika Labour Office, in accordance with Section 7 of the Trade Disputes Act, Cap.234, Laws of Kenya (which is hereinafter referred to as the Act), to act as the Investigator. Consequently, in his report which was released to the parties on 30th May 1996, the Minister found, inter alia, that the dismissal of the grievant was unlawful because the said items which were found in his possession were lawfully issued to him and recorded. In the circumstances, the Minister recommended that the dismissal be reduced to normal termination of service and the grievant be paid all his terminal benefits in accordance with the parties’ collective agreement. He recommended further that the grievant be paid six months’ salary for wrongful dismissal. The Minister finally appealed to the parties to accept the recommendation as a basis of settlement of the dispute. The Union accepted the recommendation, but the Company rejected it on the ground that “it was totally biased and did not reflect the true position of the matter” (see Union Appendices I to 11 and Company Appendices V to IX). Hence this dispute for adjudication and determination.

The Notification of Dispute, Form ‘A’, dated 24th August 1998, together with the statutory certificates from the Minister for Labour and the Labour Commissioner under Section 14, subsections(7) and (9)(e) and (f) of the Act, were received by the Court on 1st February, 1999. The Union submitted their memorandum on 30th March 1999, and the Company filed their reply statement thereto on 21st March, 2000. The dispute was intermittently stood over generally at the joint application of the parties to enable them explore the possibility of an amicable settlement, but their attempts failed, and accordingly the case was heard on 13th February, 2001.

It is not in dispute that the grievant was employed by the Company as a general field worker on 7th November 1977 in the pineapple plantation at the rate of Kshs.1. 05 per hour; and at the time of his dismissal on 25th May, 1993 for allegedly stealing the said Company property, he was earning Kshs.6. 95 per hour.

Mr. Waweru for the Union submitted that it was unbelievable for anyone to imagine or think that the grievant would have stolen the said worthiless items, considering that he had rendered to the Company sixteen (16) years of clean employment record. After all, he said, there was no evidence at all to show that the grievant had actually stolen the said items. He contended further that the same were lawfully issued to him and he had a right to keep them as his working tools. Mr. Waweru also strongly deprecated the conduct of the Company in carrying out, or authorizing, a search in the grievant’s house for the alleged stolen property in his absence. In the circumstances, he prayed as stated hereinabove, i.e., that the grievant be paid all his terminal benefits and compensation for wrongful dismissal and loss of employment.

In his reply, Mr. Kariuki stated that on the night of 1st May 1993, a plantation store at Ndula caught fire and the security personnel, with the assistance of other employees, put it off. But, unfortunately, some employees, including the grievant, engaged in wanton looting of the property of the Company, e.g. protective clothing, knives, jembes, pangas, mattocks, shovels, etc. On the following day, an appeal was sent out to the employees at the camps to return or surrender all the items which were looted the previous day; and, as a result, some employees heeded the appeal by returning or surrendering the stolen items and no disciplinary action was taken against them. However, the grievant and three other employees, namely, Francis Lubesi, Josephat Kariuki and Kimili Kivungu Kathul, did not bother to return the stolen items in their possession. On 5th May 1993, a raid or search was carried out by the personnel in the security department in an effort to recover the stolen items; and during the raid or search, the grievant and his colleagues were found in possession of the said property of the Company, viz: canvas trousers and knives. On enquiry, the grievant did not give a satisfactory answer, but a lame excuse that he had been issued with the items for distribution to his gang. This excuse was untrue because, even if he was issued with the said items, the same would have been returned at the end of the working day. In the circumstances, the grievant and his three colleagues were summarily dismissed in accordance with the provisions of Clause 18(g) of the parties’ collective agreement in force at the material time. The Branch Secretary and the Chief Shop steward interceded on behalf of the grievant for the summary dismissal to be reduced to normal termination of service, but the Company rejected it.

Mr. Kariuki, therefore, submitted that, in view of the expansive operations of the Company, highly elaborate security measures had been put in place to ensure that employees and outsiders or strangers did not steal the property of the Company. But the grievant took advantage of a calamity, i.e. burning down of the store, to steal the property of the Company; and, after being accorded or given an opportunity to return the same, he neglected or refused to do so. Hence his summary dismissal as aforestated. In the circumstances, Mr. Kariuki prayed that the dismissal of the grievant be upheld as justified.

The grievant, who had served the Company for sixteen(16) years with admittedly a clean record, was summarily dismissed as aforestated under Clause 18(g) of the parties’ collective agreement, which states as follows:-

“18. DISMISSALS

Any of the following matters shall be viewed as grossmisconduct for which an employee shall be subject toinstant dismissal.

(a)………………………………………………………

(b)………………………………………………………

(c)………………………………………………………

(d)………………………………………………………

(e)………………………………………………………

(f)………………………………………………………

(g)If an employee commits any criminal offence against or to the substantial detriment of the Company or Company’s property.

(h)…………………………………………………”

The value of the said items was not given, but it would appear to me to be very insignificant. Mr. Waweru contended that the said items were lawfully issued to the grievant by the in-charge of the stores and he(grievant) had the right to keep them as his working tools. Mr. Kariuki did not controvert this assertion by producing the records, which were in possession of, or kept by, the Company, to show that the same were not issued to the grievant as alleged. Another point which was raised by Mr. Waweru was that the management of the Company carried out, or authorized, a search in the grievant’s house in his absence. This was also not denied or challenged by the Company. Therefore, in view of the lack of contrary evidence from the Company to show that the grievant was not actually issued with the said items, and their non-observance or violation of the principles of natural justice in conducting or authorizing the search in the grievant’s house in his absence, I find that the punishment of summary dismissal of the grievant for the alleged theft was wrongful, extreme, and harsh as it was not proportionate to the gravity of the offence, if any. I am also of the view that the grievant could not have been unwise to risk his sixteen(16) years of clean employment record by stealing such very petty items. In my estimation, therefore, the punishment was repugnant to the notions of good conscience, equity and justice.

In the result, and considering his past sixteen(16) years of clean employment record, I am of the considered opinion that the grievant is entitled to normal termination of service, with full terminal benefits and compensation for wrongful dismissal and loss of employment. Accordingly, I award and order that the summary dismissal of the grievant be reduced to normal termination of service and he be paid all his terminal benefits in terms of the parties’ collective agreement in force at the material time. In addition, the grievant be paid an equivalent of six(6) months salary for wrongful dismissal and loss of employment.

On consultation, the members of the Court concur with this decision.

DATED and delivered at Nairobi this 27th day of February, 2001.

Charles P. Chemmuttut,

JUDGE.