[2018] KEELRC 1801 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NYERI

CAUSE NO. 201 OF 2016

KENYA PLANTATION & AGRICULTURALWORKERS UNION.....CLAIMANT

VERSUS

DELMONTE (K) LIMITED............................................................RESPONDENT

JUDGMENT

1. The Claimant herein filed suit on behalf of the Grievant Peter Mbote. In the suit, it was averred that the Grievant was employed by the Respondent as a driver in its farm at Thika on 24th August 1996 and that at the time of the dismissal was earning a basic salary of Kshs, 37,319. 95 a month. It was averred that the Grievant reported to work on 6th June 2014 and was assigned a tractor registration No. KBB 608M and he was to take it to the workshop due to a clutch and gear problem. The Claimant averred that the Grievant on his way from the workshop at around 3. 00am as he passed through Kakuzi road approaching Karuku river, he developed mechanical problems and the steering wheel locked itself and he tractor was uncontrollable causing it to fall in the river. The Claimant averred that the Grievant was hit on the head and backbone rendering him unconscious and he regained consciousness and reported the accident to his supervisor Mr. Nyoike and the security of the Respondent. They came to the scene and took the Grievant to the dispensary where he was treated and discharged. The Respondent wrote to the Grievant on 19th June 2014 requiring the Grievant to show cause why disciplinary action should not be taken against him for carelessly handling and operating company equipment without proper authorisation. The Grievant replied to the show cause letter and stated that he had authority to take the tractor and that the tractor had developed mechanical problem thereby causing the accident. The Claimant averred that the Respondent wrote a letter to the Grievant inviting him for a disciplinary hearing on 2nd July 2014 and that the Grievant was dismissed from employment on 4th July 2014 on account of gross negligence and for failure to follow safety measures and instructions. The matter was reported by the Claimant as a dispute to the Minister of Labour with a view of resolving the matter through conciliation. The Minister appointed a conciliator and the parties met on 12th March 2015 and the parties were unable to agree leading the conciliator to issue a certificate of disagreement. The Conciliator had recommended the summary dismissal of the Grievant be reduced to termination but the Respondent declined precipitating the suit. The Claimant averred that the Grievant had worked for 18 years without any record of indiscipline. The Claimant sought the unconditional reinstatement of the Grievant, payment of the Grievant for the period the Grievant was out of work and the leave days. The Claimant sought that in the alternative, the Grievant be paid his gratuity for the years he served at the applicable rates as per the CBA, 12 month’s salary as compensation, payment in lieu of leave, leave travelling allowance, 2 month’s salary in lieu of notice, damages for unlawful termination, costs of the suit, interest and any other relief the court may deem fit to grant.

2. The Respondent denied that there was a valid recognition agreement with the Claimant or that the parties had negotiated several CBAs. The Respondent denied that it had employed the Grievant on 24th August 1996 as a driver at its farm at Thika earning Kshs. 37,319. 95 per month. The Respondent averred that the Grievant was carrying 7 other employees 5 in the tipper and 2 in the cabin without authority, drove the vehicle at a very high speed and that the Grievant lost control after hitting a pothole and caused the injuries to the fellow employees, himself and damage to the vehicle. The Respondent averred that the Grievant was dismissed in accordance with the law after following due process. The Respondent averred that the Grievant was paid for all his dues up to and including 1st April 2015 and that the Claimant lacked locus standito institute the claim on behalf of the Grievant.

3. The Grievant testified on 20th March 2018 and stated that he was employed by the Respondent on 28th August 1996 as a general field worker and was promoted to leadman and later became a driver from 2009. He testified that he was dismissed on 7th July 2014 because of an accident which had occurred as he drove the tractor to the workshop it lost control as he approached a bridge and that in the accident he fell into the river with the tractor and lost consciousness. Upon regaining consciousness an hour later he called his supervisor and was taken to hospital. He stated that he was given a notice to show cause went through the disciplinary process and was dismissed. He sought to be reinstated to work.

4. In cross-examination he testified that the salary for the days worked in July 2014 were paid. He stated that he was not aware that the Respondent had barred him from driving. He stated that he had driven the tractor previously and knew that the tractor had issues. He testified that Mr. Wanyoike the supervisor had directed him to drive the tractor to the workshop. He denied that he took the tractor without authority. He stated that he was all alone at the time of the accident and confirmed that he had had 2 previous accidents prior. He stated that he was not aware that he had been banned from driving.

5. In re-examination he testified that he was assigned to take the tractor to the workshop and after signing for the keys started his journey to the workshop. He stated that one cannot just take a vehicle from the yard and the supervisor and the security guard knew he had taken the tractor as the supervisor is the one who assigned him to take the tractor to the workshop. That marked the end of the Grievant’s testimony.

6. The Respondent called Stephen Nyamoti Thomas the security officer of the Respondent. He testified that the Grievant was dismissed for driving a vehicle without authorisation. He testified that the supervisor denied giving the Grievant permission to drive the tractor which had brake issues at night. He stated that the mechanics even come to the field if a vehicle has mechanical problems and that the tractor was in the yard thus could have been repaired there. He testified that the Grievant was given a show cause letter and was invited to a disciplinary meeting and subsequently dismissed for driving a vehicle without authorisation.

7. In cross-examination he testified that the Grievant was in the capacity of a leadman, a deputy of a supervisor much like a corporal and inspector. He stated that the supervisor denied allocating the Grievant duties and the record book shows the Grievant took the tractor. He stated that the accident was on account of carelessness and that Grievant drove the vehicle without authorisation. He stated that he was aware that the Grievant used to drive but was stopped from driving and the Grievant admitted he was notified orally and in writing not to drive. He testified that the supervisor denied allocating the Grievant the vehicle.

8. In re-examination he testified that the Grievant was not authorised by Mr. Mbithi the transport manager to drive and the supervisor Mr. Nyoike did not authorise the Grievant to drive as the Grievant had been disqualified from driving. He stated that the Grievant was in charge of the people irrigating and he was to ensure the pumps have water etc and that the dismissal was in order. That marked the close of the defence case and parties were to file submissions.

9. The Claimant filed the closing submissions on 13th April 2018 while the Respondent filed submissions on 24th April 2018. The Claimant submitted that the issues for determination where whether the dismissal of the Grievant was fair and lawful, whether the Grievant is entitled to the remedies sought. The Claimant submitted that under Section 43(1) of the Employment Act, the employer had an obligation to prove the reason for termination and that under Section 45(1) of the Employment Act the employer was barred from dismissing the employee unfairly. The Claimant submitted that the reason for the dismissal of the Grievant was invalid and unfair having been based on invalid reasons. The Claimant placed reliance on the case of Kenya Plantation &Agricultural Workers Union vDel Monte Kenya Limited [2016] eKLRand the case of Zephania Nyambane v Nakuru Water &Sanitation Services Company Limited [2013] eKLRwhere judges Radido J. and Ongaya J. respectively held that the reasons advanced for the dismissal were not valid. The Claimant submitted that it had proved the case on behalf of the Grievant to the standard of proof required that the dismissal was invalid and therefore the Grievant was entitled to the prayers sought.

10. The Respondent submitted that the dismissal was fair as the Grievant had been banned from driving the vehicles of the Respondent and had not been assigned the duty of moving the tractor to the garage. The Respondent submitted that the accident took place at a very late hour and there was no need to move the tractor as it was in a secure yard and could be repaired there. The Respondent submitted that the procedure and law were followed in the dismissal of the Grievant and that he was permitted to be accompanied by the shop steward at the disciplinary meeting. It was submitted that the dismissal of the Grievant was in line with Section 44(4) of the Employment Act as the Grievant had failed to comply with lawful instructions not to operate the machinery of the Respondent due to previous accidents. The Respondent relied on the cases of Banking Insurance and Finance Union (K) vStandard Chartered Bank of Kenya Limited [2013] eKLRwhere Ndolo J. cited with approval the finding by Radido J. in Alphonse Machanga Mwachanya vOperation 680 Ltd [2013] eKLRwhere the legal fairness requirements set out in Section 41 were summarised. The Respondent also relied on the case of Amos Ogamba Bosire vWakenya Pamoja Savings Credit Society Ltd [2017] eKLRwhere Njagi Marete J. held that the Respondent had fulfilled the tenets of substantive and procedural fairness in allowing the claimant an open chance to offer a defence to the accusations. The Respondent submitted that if the court were to hold that the dismissal of the Grievant was unfair, the court should award 4 months as compensation and relied on the case of William Kairitha Gacheru vEast Africa Packaging Industries Ltd [2016] eKLRin which case Abuodha J. awarded 4 months as compensation for unfair termination though the Respondent recognised that the award under Section 49(1)(c) is discretionary and the court can grant the maximum 12 months compensation.

11. The Grievant was dismissed after an accident which was not caused in the manner pleaded by the Respondent. The Grievant did not have passengers in the tractor as asserted by the Respondent. He was accused of driving a vehicle without authorisation. He was given a notice to show cause and was heard before the disciplinary committee. In the dismissal letter, the Respondent gave the reasons for the dismissal. Under Section 43(1) of the Employment Act, the Respondent had to show that it had reasons for the dismissal. The Respondent demonstrated that the dismissal was on account of the Grievant having contravened a cardinal principle of his employment contract. He acted in breach of the terms of his contract by handling equipment while well aware he was not permitted to drive the Respondent’s tractor. If he had been authorised to take a defective tractor to the yard at 10pm, one wonders where he was between then and 3. 00am when he had the accident. It was the Respondent’s position that the movement was not authorised and that it was unnecessary as the tractor was in a safe parking and could be repaired from there. It would seem the Respondent accorded the Grievant the requisite procedural fairness as expected of an employer who is contemplating a dismissal for misconduct. The cases cited by the Claimant and those cited by the Respondent are all good law as far as the issues of fair hearing and compensation go. In this case, the Claimant failed to demonstrate the dismissal of the Grievant was anything but lawful. In the premises there was cause for dismissal and the Respondent followed the law and the CBA in terminating the services of the Grievant and suit falls for dismissal and I accordingly dismiss it with costs to the Respondent.

It is so ordered.

Dated and delivered at Nyeri this 31st day of May 2018

Nzioki wa Makau

JUDGE