[2018] KEELRC 1813 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NYERI

CAUSE NO. 200 OF 2016

KENYA PLANTATION & AGRICULTURAL

WORKERS UNION.................................................................CLAIMANT

VERSUS

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

JUDGMENT

1. The Claimant herein filed suit on behalf of the Grievant Masila John Kioko. It averred that the Grievant was employed by the Respondent on 26th March 2000 as a driver at its farm at Thika and at the time of dismissal, the Grievant was earning Kshs. 47,136. 18 per month. The Claimant averred that the Grievant reported to work on 25th February 2015 at 2. 00pm and was assigned a lorry No. 242 registration KBG 386K by his supervisor Alex Kiratu to haul treated seeds from Ndula seed dip to field 74. At around 12. 45am the Grievant departed from field 74 back to Ndula seed dip with 7 other staff who were employees of the Respondent. He carried 2 in the cabin and the other 5 in the tipper with their metal dumping rakes. It was averred that the Grievant while moving along the Kituamba-Ndula road there was a big pothole and as he applied brakes the vehicle’s front wheel locked and forced the lorry to climb the pavement on the rights and toppled to the left. The Claimant averred that the accident was reported to Mr. Kiratu the supervisor and he arrived at the scene shortly thereafter with the security supervisor Mr. Mwaura Bara and the injured passengers were rushed to hospital. The Grievant suffered light injuries on the right knee and thigh. The Claimant averred that on 11th March 2015 the Respondent wrote to the Claimant seeking his response on the show cause letter within 24 hours why disciplinary action should not be taken against hum for failure to diligently perform his duties. The Grievant replied to the show cause letter on 13th March 2015 and stated in the letter that it was not his fault that the vehicle got involved in an accident. The Respondent invited the Grievant to a disciplinary hearing on 27th March 2015 through its letter of 25th March 2015. The Claimant averred that the Respondent unlawfully and unfairly dismissed the Grievant from employment summarily on account of gross negligence and failure to follow safety measures and instructions. The Grievant reported the issue to the Claimant who reported the matter to the Minister for Labour who appointed a conciliator and the parties met on 20th July 2015 and 3rd August 2015 and agreed to disagree prompting the reference to court on 25th November 2015 through the certificate of disagreement. The Claimant averred that the Grievant had worked for the Respondent for 15 years without any record of indiscipline and that the action of the Respondent to dismiss the Grievant was malicious, uncalled for and unfair in the circumstances. He sought unconditional reinstatement and payment for the period he was dismissed, leave days due to him together with leave travelling allowance and in the alternative gratuity for the years worked with the Respondent at the rates provided for in the CBA and compensation for 12 months, payment in lieu of leave, leave travelling allowance, 2 months salary in lieu of notice of termination and general damages for the unlawful, illegal and unfair dismissal, costs of the suit and interest on the sums claimed.

2. The Respondent filed a defence in which it denied there was a valid recognition bargaining agreement and further denied that the parties had negotiated several CBAs. The Respondent denied that it had employed the Grievant on 26th March 2000 as a driver at its farm in Thika. The Respondent averred that the Grievant had carried the 7 employees without any instructions and had driven the truck at high speed, hit a pothole making the vehicle lose control, veer off the road and cause an accident. The Respondent averred that the Grievant carried out his job without due care and attention thus causing the accident and damaging the company property. The Respondent submitted that the dismissal of the Grievant was in accordance with the law and therefore he was not entitled to the prayers in the claim. The Respondent averred that the Claimant had no locus standi to institute the suit. The Respondent therefore prayed that the Claimant’s suit against it be dismissed with costs.

3. The Claimant testified on 20th March 2018 and reiterated that he was employed by the Respondent in March 2000 and was dismissed in April 2014. He stated that he was a general field worker and was in 2006 employed as a driver till 2014. He testified that on the material day he was assigned to carry seedlings from dip to field 74 and the last load was at 11. 00pm. He stated that at 12. 40am he carried 7 passengers and 2 were in the cabin and 5 in the back of the truck. He stated that the tipper could carry 60 people and he had been asked by the supervisor to carry the staff. He stated that the road was dusty and the lorry swerved to the right then fell on the left. He testified that he knew there was a pothole as this was his third trip for the day. He stated that he applied brakes and the wheel on the side locked causing the truck to swerve right and flip. He called the supervisor and the security supervisor also came and the staff were taken to the dispensary. They were injured though not seriously. He was given a show cause and given the opportunity to explain and was later called to the disciplinary hearing. He stated that he was given a dismissal letter. He earned Kshs. 47,100/- and stated that it was not possible to do 50km/hr as the vehicle had a governor. He testified that he was following instructions and that it was procedural to carry the staff.

4. In cross-examination he testified that he used to get a payslip from the Respondent and that he was dismissed in April 2015. He stated that the trip he had taken was the third on that day and was to drop seedlings. He testified that he was paid for days worked and was given a notice to show cause and was heard at the disciplinary hearing.

5. The Respondent called Stephen Nyamoti the security officer of the Respondent. He stated that the Grievant was assigned duties to carry seedlings and that on the last trip he drove carelessly causing the truck to tip over. He testified that he visited the scene and noted there was a pothole. He stated that the Grievant had driven there a few times and the Grievant was unable to satisfactorily explain the accident. The Grievant was given a show cause and was heard before his dismissal.

6. In cross-examination he testified that the Grievant drove at a high speed, hit the pothole and overturned. He confirmed that the lorries have speed governors and stated that any speed where you cannot control the vehicle is high speed. He stated that the panel hearing concluded that the Grievant was speeding. He testified that the accident occurred in the night and that the Grievant had reported to work at 2. 00pm. He could not say that the Grievant was tired as it was within his working time. He stated that the Grievant was not driving continuously and that he carried staff against policy and was negligent as he was not allowed to carry passengers on the seed tipper. He testified that the truck carries chemicals and he questioned the supervisor who said he did not give the authority as there is astaff vehicle.

7. In re-examination he stated that the supervisor was asked about the matter and said that he did not give authority for staff to be carried in the seed tipper. He stated the Grievant was dismissed for lack of care in driving the truck.

8. The Claimant did not file submissions and the Respondent filed submissions on 24th April 2018. In the submissions the Respondent asserted that the issues for determination where whether there was fairness in the termination and whether the reasons for the termination were valid. The Respondent submitted that the Grievant was given the procedural fairness under Section 41 of the Employment Act and considered his representations prior to dismissal thus complying with Section 41(2) of the Act. The Respondent submitted that the dismissal letter cited the provisions of the CBA which identify the matters that amount to gross misconduct. The Respondent submitted that the careless driving qualified as improper performance of his duty which he was under an obligation to perform carefully and properly. The Respondent submitted that the dismissal was therefore in accordance with the law and the provisions of the terms of the Grievant’s service. 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 thatthe Respondent had fulfilled the tenets of substantive and procedural fairness in allowing the claimant an open chance to offer a defence to the accusations.

9. 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.

10. The Grievant herein was dismissed for causing an accident while carrying member of staff in a tipper. He alongside the staff suffered injuries. The Respondent’s witness stated that the Grievant must have been careless as an accident could only have occurred due to want of care. He stated that any speed where you cannot control the vehicle is a high speed. The Grievant therefore was an author of his misfortune. He was given a show cause letter and given an opportunity to defend himself. His explanation was found wanting and he was dismissed summarily. The Respondent complied with the provisions of the law in particular the safeguards provided under Section 41 of the Employment Act 2007 were followed. The Claimant’s claim is therefore devoid of merit and is dismissed with costs.

It is so ordered.

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

Nzioki wa Makau

JUDGE