[2024] KEELRC 1702 (KLR)

Kenya Union of Commercial and Food Allied Workers Union v Woolmat Limited (Employment and Labour Relations Cause E043 of 2023) [2024] KEELRC 1702 (KLR) (2 July 2024) (Judgment)

Neutral citation: [2024] KEELRC 1702 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nakuru

Employment and Labour Relations Cause E043 of 2023

HS Wasilwa, J

July 2, 2024

Between

Kenya Union of Commercial and Food Allied Workers Union

Claimant

and

Woolmat Limited

Respondent

Judgment

1. This suit was instituted by the claimant Union vide a Memorandum of claim dated 8th September, 2023, suing the Respondent, on behalf of one of its members, Mr. David Muoti Nyambwembe (herein after referred to as the ‘grievant’), claiming that its member was unfairly terminated from employment and seeking compensation for the unfair termination. The claimant sought for the following reliefs; -i.That the summary dismissal meted on the grievant was unlawfully and unprocedural.ii.The act by the Respondent was discriminatory and therefore unfair.iii.Despite efforts made by the Respondent to prove procedural Fairness, it cannot hold, following the way the same was handled hence the procedure was not followed.iv.That the process being unfair and unlawful, the grievant be reinstated back to his services and treated in all respects as if no dismissal ever took place.v.Where reinstatement is not possible, the Respondent be obliged to pay the grievant as follows; -a.Notice pay of Kshs 43,556. b.Leave not taken of Kshs. 12,056. c.Service pay for 20 years worked of Kshs 536,000. d.Compensation for wrongful termination of Kshs. 522,672. vi.Cost of the suit to the claimant.

Claimant’s case 2. The claimant states that the grievant was employed by the Respondent on 1st January, 2002 as a shop assistant on casual basis and later confirmed as a junior clerk, earning a basic salary of Kshs 16,900 and house allowance Kshs. 2,537.

3. That he served the Respondent diligently until 4th September, 2022, when he was served with Notice to Show cause on the basis that he had displayed 2 pieces of 450 ml Berry Cocktail Yoghurt with expiry dated of 10th August, 2022 and 1 beef sausages value pack 1 kg with expiry date of 1st August, 2022 on the shelve.

4. That the grievant responded to the show cause letter via its letter of 10th September, 2022 and received an invitation letter dated 20th September, 2022 for hearing scheduled for 23rd September, 2022 at 2 pm. After hearing, he was issued with a warning letter dated 11th October, 2022 and the case was closed.

5. The next day on 12th October, 2022, he was issued with another Show cause letter for allegedly displaying expired Beef Chipolata for sale and another Show cause letter of 13th October, 2022, which he responded to and was invited for disciplinary hearing that took place partially on 21st October, 2022 and adjourned to 25th October, 2022 where it was concluded.

6. That on 26th October, 2022, he was invited for another meeting where he was asked to shed light into the result of CCTV footage of 25th October, 2022 and invited for a further disciplinary hearing scheduled for 5th November, 2022.

7. It is averred that on 8th November, 2022, the grievant was issued with another show cause letter and on 11th November, 2022, he was issued with a letter citing him for gross misconduct and eventually, he was dismissed.

8. The claimant stated that the grievant was working alongside the merchandiser, an employee of Midal Limited and Trikkad Limited, operating in different shift and was astonished to have been singled out for disciplinary hearing.

9. The Claimant states that the grievant was targeted and punished for wrongs that he had been pardon and issued with warning letter.

10. The Claimant states that the disciplinary action against the Grievant was a move calculated to have the grievant withdrawn from the membership of the Union, because, as at the time, he was a member of a union and a shop steward.

Respondent’s case 11. The Respondent entered appearance and filed a response to claim on 4th October, 2023, denying the entire claim and stated that on 4th September, 2022 the respondent issued the grievant with show cause letter for displaying expired goods being Berry cocktail yoghurt and beef sausages value pack.

12. That the Respondent received a response to show cause on 10th September, 2022 and invited the claimant to disciplinary hearing that was conducted on 6th and 7th October, 2022, which he attended and defended himself. After due consideration of the defence, the Respondent issued the grievant with warning letter and the matter was closed.

13. It is stated it is until 11th October, 2022 at around 2. 35pm, when a loss control officer found 1 piece of expired Beef Chipolatas on the grievant’s line of duty and on 12th October, 2022, he was issued with a show cause letter, which he responded on the same day. That the next day on 13th October, 2022, he was issued with another letter seeking clarification of the response and on 19th October, 2022, the grievant was invited for disciplinary hearing convened on 24th October, 2022, which he attended but that he raised serious allegations of blaming some of the outsourced employees of planting the said expired product on the shelves. That these allegations needed further clarification, prompting the Respondent to adjourn the meeting and seek for further clarification, which the grievant responded to on 26th October, 2022.

14. It is stated that the response in the letter of 26th October, 2022 was not clear and the respondent asked for further clarification and invited the grievant for a further hearing on 27th October, 2022, which he attended and was heard on his defence.

15. Consequently, as a result of the grave allegations raised by the grievant, the Respondent issued show cause letter to Leah Kinuthia and James Kahero and invited the said employees for hearing to be crossed examined by the grievant on the allegations and after hearing, the Respondent resolved to summarily dismiss the grievant for gross misconduct.

16. After termination, the Respondent computed the grievant’s terminal dues of Kshs. 248,348 being days worked in the month of November, 2022, monthly bonus, leave allowance, service pay and 2 months’ salary in lieu of notice and paid him by cheque number 088332 dated 2nd December, 2022, through Claimant’s account at Unaitas Sacco Society Limited.

17. It is stated that the alleged unfair termination was reported to the labour office, which appointed a conciliator that took them through the conciliation process, where the Respondent participated fully but did not agree with the recommendation of the conciliator.

18. That from the chronology of events, the Respondent stated that the termination of the grievant was fair and done according to due process.

Evidence 19. The claimant called the grievant David Muoti Nyambwembe, as its CW-1. He adopted his witness statement of 8/9/2023 and produced the list of documents marked as Exhibit 1-12 respectively. He added that he was transferred to Iseme Branch on 7/7/2020 because he had refused to withdraw from the Union. He stated that the expired goods were stage managed.

20. Upon cross examination, he testified that he was working in the milk section, dealing with farmers’ choice and in charge of arranging the products and stock taking and ordering for goods that were out of stock. He testified that he used to do stock taking in the morning and in the afternoon, he arranged the goods. He admitted that there were expired goods found on the shelves being yoghurt and sausages. That he explained himself and was issued with a warning letter.

21. He testified that he did not place the expired Chipolata, on the shelf but that it was brought from elsewhere and planted on the said shelf. He admitted that he was subjected through disciplinary hearing. Further that the person he suspected of placing the expired chipolata on the shelf was present during hearing but he did not cross examine him. He also stated that he attended the disciplinary hearing with his Union representative, Michael Kamau. He testified that he was dismissed after that and paid Kshs 248,000 as terminal dues. He testified that he earned Kshs 24,000 to Kshs 25,000 but that the payslip showed he was earning Kshs 20,000.

22. The Respondent’s called Lucy Wachuka, it Human Resource Officer as RW-1 who adopted her witness statement of 23rd January, 2024 and produced the Respondent’s documents as Exhibit 1-48 respectively.

23. Upon cross examination, she testified that when they found expired goods in the shelf, they carried out investigations on the 4 employees that worked on that section. She testified that the employees were responsibly for arranging items on the shelves and checking expiry date of these items, therefore that these employees improperly did their job. She testified the grievant was shown the CCTV footage, ruling out allegations that he Chipolata was planted on the shelf by another employee.

24. On re-examination, she testified that the Chipolata was found on 10/10/222, while the sausage and yoghurt were found on 11/10/2022.

Claimant’s Submissions 25. The claimant submitted that the incident that led to the grievant’s termination was for displaying expired goods but that the said goods were found in the morning when the outsourced staff from Midal Limited were the ones in shift. It was argued that the outsourced Midal staff were not questioned but that the Respondent waiting for him to come to work and interrogated him and even subjected him alone to disciplinary hearing, when the section was manned by various staff on shifts. He added that barely a day after he had been warned and cleared all expired goods, a product that had expired on 9th May, 2022 was found in his section, raising more question on foul play against the grievant because all items that had expired in the month of August and September, 2022 had been removed from the shelves.

26. It was argued that the grievant was singled out of a work force of four working in the same section for the mere fact that he was a direct employee engaged on permanent and pensionable basis, while the other employee had been outsourced. He added that the permanent employees were majorly targeted to get rid of the few remaining contrary to Section 5 of the Employment Act.

27. The claimant submitted that the grievant had worked for the Respondent for 21 years and within that period, he only had one warning letter on 8th March, 2012, more than 12 years ago, therefore that his character was without reproach and thus a warning letter could have sufficed in line with clause 19 of the Collective Bargaining Agreement and not the dismissal.

28. It was submitted that the beef chipolata, that caused his dismissal was discovered on 11th October, 2022, the same day a warning letter was issued to him but that the same was not handed to him till the next day, a clear indication that the move to frame the grievant was calculated.

29. On the CCTV footage, the claimant submitted that what was produced was a one sided part of the case leaving out footage of four cameras in a move to ensure that he is found culpable to the exclusion of all others. He maintained that the Respondent targeted the grievant alone as seen in the way in which only the grievant was singled out and punished, while the outsourced employees working in the same area were not questioned. Further that the lead to the basement fridge were expired items were stored was not explored, neither was the CCTV footage leading to that area tabled in evidence, confirming suspicion by the grievant that he was targeted for removal from the Respondent’s employ to retain only outsourced employees.

30. On that basis, the claimant submitted that they have proved that the reason for termination was not justified and thus the claim should be allowed as prayed with costs.

Respondent’s Submissions 31. The Respondent submitted on three issues; whether the grievant’s Summary dismissal was unlawful, whether the grievant is entitled to the reliefs sought and who bears costs of the claim.

32. On the first issue, the Respondent submitted that the applicable law that govern termination is section 41 and 45 of the Employment Act. That the court should consider whether the termination was valid and due procedure followed.

33. On reason for termination, the Respondent submitted that it found expired goods displayed on 12th August, 2022 and issued the grievant with a warning letter but that upon discovering on 11th October, 2022 that there were other expired goods displayed on the shelve, the Respondent resolved to terminate the services of the grievant. He argued that replenishing the shelves was the sole function of the Grievant and not any of the other outsourced employees and in any case any disciplinary action against the outsourced employees was to be done by their respective employers.

34. It was submitted further that the grievant was the one in charge of the milk section and therefore that the buck stopped with him and was to take responsibility of any shortcoming in the said section.

35. It was argued that the allegations that the grievant was targeted for being a members of a Union were farfetched because the grievant joined the Union in 2017 and his employment terminated in 2022, as such there is no link between the grievant being a member of the Union and the termination.

36. The Respondent maintained that the grievant had earlier been found to have displayed expired goods on the shelf and given a warning letter as such, the allegations that the Respondent targeted the grievant was not true. Therefore, that the reason for termination was justified.

37. On procedure, it was submitted that the Respondent followed due procedure by issuing a Show cause letter, carrying our investigations and inviting the grievant to disciplinary hearing, where he attended with a Union member and defended himself, therefore that proper procedure was observed. In support of this, the Respondent relied on the case of Wilson Waithaka V Barclays Bank Limited ; Nairobi ELRC Cause No. 1194 of 2017 where the Court expounded on requirements of section 41 and 45 of the Employment Act and stated that;-“it is apparent that the claimant was accorded a fair hearing within the meaning and spirit of section 41 of the Act… the Respondent has proved to the required standard that it had a valid reason to terminate the claimant’s employment owing to poor performance and in so doing, observed the requirements of a fair hearing.”

38. In light of the foregoing, the Respondent submitted that it had a valid reason for terminating the services of the grievant and that it followed proper procedure in terminating the said services thus the termination was justified.

39. On reliefs sought, it was argued with regard to notice pay, that the grievant had been paid two months’ salary in lieu of notice in line with Clause 21(1)(b) of the Collective Bargaining Agreement. Similarly, that he was paid leave not taken of Kshs 12,056 as admitted during hearing, therefore payment under these head should be disallowed.

40. On service pay, the Respondent submitted that the claimant sought for payment of Kshs 536,000, basing its calculation on salary of Kshs 43,556. 26, when he admitted during hearing that he used to earn Kshs 21, 778 as per the payslip tendered in evidence. Therefore, that the service pay was paid to the grievant in full based on monthly salary of Kshs 21,778.

41. On compensation, the Respondent submitted that having justified the dismissal of the grievant, the claim for compensation is not warranted in the circumstances.

42. On costs of suit, it was submitted that costs follow event and therefore that the suit herein being incompetent, misconceived, vexatious and scandalous, costs should be awarded to the Respondent.

43. I have examined all the evidence and submissions of the parties herein. The applicant herein has averred that he was terminated for invalid reasons. The Respondents on their part aver that they had valid reasons for terminating the services of the grievant and that they followed due process before his termination.

44. From the grievant’s evidence the grievant was terminated for putting on the shelf expired products. The grievant indicated that he was issued with a show cause letter concerning this issue dated September 4, 2022. He responded to the show cause letter indicating that the expired items had been removed from the shelf but he couldn’t take them to the store because he was alone.

45. The grievant was thereafter invited to a disciplinary hearing to take place on 23rd September 2022 at 2 pm at Woolmart West Branch. The disciplinary hearing took place on October 6, 2022. The minutes of the hearing were produced in court as exhibit 7. On 7th October 2022 after the hearing, the grievant was found culpable of displaying expired items on the shelves. He was given an opportunity to present his case. On this issue, the grievant was issued with a warning letter dated 11th October 2022.

46. It is however surprising that after the show cause the grievant was served with another show cause letter dated 13th October 2022.

47. On 19th October 2022 he was again invited for a disciplinary hearing to take place on 21st October 2022. The minutes of this hearing are again attached as appendix 17.

48. Following the hearing on 27th October 2022 an other show cause letter was again served on him on 8th November 2022 and a hearing on 10th November 2022. The grievant was finally dismissed from employment vide a letter of November 11th 2022.

49. From the chronology of events above, I note that the grievant was subjected to a flawed disciplinary process. He was on many occasions issued with show cause letters on the same issue and he responded. He was therefore subjected to a disciplinary hearing and served with a warning. Two days later however the same issue were raised and a fresh show cause letter issued to him and another disciplinary process followed which led to his dismissal.

50. Litigation must come to an end. The grievant was indeed taken through a disciplinary process and given a warning. The process of discipline came to the end when the warning was issued and the Respondent could not subject him to another disciplinary process based on the same issues.

51. It was unfair and unjust to subject the grievant to a 2nd disciplinary process leading to dismissal when he had already been warned of the same issues.

52. Section 41 of the Employment Act 2007 states as follows:-“41. Notification and hearing before termination on grounds of misconduct(1)Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.(2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”

53. Section 45 (2) of the Employment Act 2007 on the other hand states as follows:-“45. (2)A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason—related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.”

54. Given that the grievant was subjected to a flawed disciplinary process, being taken through a various disciplinary processes, I find his dismissal was unfair and unjustified.

55. In terms of remedies, given the flawed disciplinary process, I find he is entitled to compensation equivalent to 10 months’ salary.= 43,556 x 10 = 435,560/=

56. I also award him Notice pay of 1 month = 43,556 and leave not taken as pleaded 12,056/=Total = 491,172/=Less statutory deductionsThe Respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment.

JUDGEMENT DELIVERED VIRTUALLY THIS 2ND DAY OF JULY, 2024. HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of: -Wanjohi Kaui for Respondent – PresentMuunda for Claimant – Present