[2018] KEELRC 1330 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO. 560 OF 2013

(Before D. K. N. Marete)

KENYA UNION OF COMMERCIAL FOOD

AND ALLIED WORKERS...........................................................CLAIMANT

VERSUS

KENYA MEAT COMMISSION.............................................RESPONDENT

JUDGEMENT

This matter was brought to court vide a Memorandum of Claim dated 17th April, 2013. The issue in dispute is therein cited as;

“Unlawful and Unfair Summary Dismissal of Mr. Paul Mwaura Njuguna”

The respondent in a Respondent’s Response to Memorandum of Claim dated 7th June, 2013 denies the claim and prays that the same be dismissed with costs.

The claimant’s case is that the parties herein have a valid Recognition Agreement pursuance to which a Collective Bargaining Agreement was negotiated and concluded.

The claimant’s further case is that Mr. Paul Mwaura Njuguna, the grievant was employed by the respondent on 17th June, 2006 as an Operator Grade 9 at a salary of Kshs.9,500. 00 per month. This was a fixed term contract for 12 months with an option for renewal. He was stationed at Athi River Factory, the respondents head office.

The claimant’s other case is that in the cause of employment, he signed a temporary house occupancy with the respondent in which the respondent deducted Kshs.2,500. 00 from his wages on a monthly basis as he met the costs of electricity and water.

The claimant’s avers that his contract was renewed on 1st July, 2007 to 30th June, 2008 and further annual renewals upto 30th June, 2010. He was however dismissed on 5th May, 2010 on allegation that he had admitted to theft of meat on 3rd May, 2010. The dismissal letter offered payment to the grievant as follows;

(i) Payment of salary upto and including May 5th 2010.

(ii) Payment of twenty three (23) days earned leave upto May 5th 2010.

(iii) Overtime if any.

(iv) Gratuity for completed employment contracts, if any. See App BMK. 6(a).

These benefits calculated totaled to a gross Kshs.89,836………….a net of Kshs.47,118. See App BMK

The claimant’s further case is that on 3rd May, 2010, the grievant reported to work at 800 hours and was to leave at 1800 hours. A few minutes to the time of departure, the grievant acquired one (1) kilogramme of shin on bone meat from the cut beef department for payment at the mini-shop after which a gate pass would be issued. The mini shop is situated just before the exit gate.

The claimant further avers that before the grievant could approach the mini-shop from the cut beef department for payment for the meat, he was accosted by a security supervisor, one, Mwangi, who started beating him. He ran to seek refuge at the laundry where there were other workers whom he hoped would protect him from the wrath of the security supervisor but to no avail.

At the laundry, the security supervisor caught up with him, wrestled him down while blowing the whistle and shouting thief. In this melee, the polythene bag containing the meat had fallen on the ground with some meat pieces spilling to the ground from the bag. Here, the internal auditor picked up what had fallen on the ground and accused the grievant of intending to steal meat from the respondent. They also changed the story to the effect that he had hidden the meat on his socks. On weighing the meat it was 644 grammes and not one kilogram as earlier weighed at the cut beef department. The supervisor then produced a hand written document which he forced the grievant to sign as admission of theft of meat.

The claimant’s further case is that on 5th May, 2010, the grievant explained what had happened to him on the fateful evening. This was repeated on 13th June, 2011. At the time of dismissal he earned Kshs.13,000. 00 per month. He had a balance of 56 days to expiry of his contract.

Attempts to resolve this issue inter partesfailed even with the appointment of a receiver by the minister of labour. The respondent was uncooperative and declined to attend the conciliators meetings, or at all.

The claimant’s case is that the grievant did not have warning letters during his stint of service, an indication that he was a good worker. She intends to establish his case as follows;

27. In this dispute, the Claimant must prove in this Court that;

(i) The grievant did not have the intention to steal and that he did not steal the quantity of meat in question.

(ii) The Respondent’s action was unfair and unlawful.

(iii) This accusation and subsequent dismissal was meant to end the grievants only one month to its renewal.

Further,

28.

(i) In answer to 27(i) above and as can be seen at App.BMK. 17 (a sample of a gate pass) the Respondent’s employees were authorized to but meat from the Respondent. That upon such purchase, a gate pass would be obtained to authorize the employee to move out with his purchase. The procedure for obtaining meat for purchase was the same to all members of staff.

(ii) The grievant had obtained 1kg meat which he would proceed with intention to pay for it at the mini-shop. He was accosted on his way to the Mini shop, beaten without reason, causing pieces of the 1kg meat to drop down from the white polythene wrapper.

(iii) Assuming that the grievant had intention to steal the quantity of meat in question, at what point would such allegation be made?

(iv) It is our submission that the grievant would be guilty if he was found outside the premises, or outside the gate with meat in his possession without a gate pass. This was not the case in this dispute.

The claimant’s further case is as follows;

32. As already stated herein, the Respondent so far has not proved that the grievant stole 1kg meat as:-

(i) He was not found outside the premises with meat without a gate pass.

(ii) The grievant was still in the premises heading to the point of payment when he was accosted and thoroughly beaten.

(iii) Allegation of theft is a serious offence which can destroy the life of accused person for life or taint his image and moral standing forever. It must be noted that the Respondent did not choose to subject the grievant to criminal justice system as there was absolutely no evidence to incriminate the grievant.

The claimant in the penultimate cites a violation of section 41(1) and 43(1) and (2) of the Employment Act, 2007 thereby making the grievants termination perilous, unwarranted and unlawful.

He prays thus;

(i) Orders the Respondent to reinstate the grievant to his formal job unconditionally with and will award of twelve (12) months gross wages being compensation for loss of employment and with a discretionary award of damages for discrimination, humiliation, loss of dignity and injury to his moral standing in society.

(ii) In the alternative, and where reinstatement is inappropriate, then we pray that the grievant be paid;

a) One month’s pay in lieu of notice 13,000. 00

b) 5 days worked in May 2010 = 5 x 13,000 2,097. 00

31

c) Outstanding leave of 32 days = 9500 x 32 x 12 9,995. 00

365

d) Overtime pay of 1604 hours = 9500 x 1604 77,744. 90

196

e) Gratuity pay – service year 1. 6.2006 – 1. 6.2020 16,120

(4 years x 31% x 13000)

f) 5 days remainder of the contract period

56 x 1300023,266. 70

30

Plus

g) 12 months gross wages being compensation for loss

of employment 154,000. 00

h) Award of damages as the Court may find just and appropriate

The respondent’s case is a denial of the claim.

It is her further case that the Collective Bargaining Agreement came into force on the 1st July, 2010 and is therefore inapplicable to this cause of action. Further, the claimant has no locus standito institute this suit. She would in any event raise a preliminary objection on this.

The respondent however admits employment of the claimant on 17th June, 2006 on terms and conditions expressed in a contract of service dated 12th September, 2006.

The respondent’s other case is that the grievant was dismissed on 5th May, 2010 on grounds of gross misconduct having confessed theft of 0. 644 grammes of shin on bone meat in writing. This was in terms of clause 13 of the grievant’s contract of employment as follows;

“…………However should you commit an offence that amounts to gross misconduct, you shall be dismissed from employment in accordance with CAP 226, Clause 17 of Employment Act”

This incident was witnessed by many people including the chief internal auditor and their security supervisor. Again, the grievant voluntarily admitted theft and blamed it on the devil.

The respondent further faults the failure of conciliatory proceedings on the claimant’s unrealistic demand for reinstatement even in a situation where the employee had betrayed her trust in him. The dismissal therefore remains valid and justified under all circumstances.

The matter came to court variously until the 18th April, 2018 when the parties agreed on a disposal by way of written submissions.

The issues for determination therefore are

1. Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful?

2. Whether the claimant is entitled to the relief sought?

3. Who bears the costs of this claim?

The 1st issue for determination is whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful. The parties hold diametrically opposed positions on this.

The claimant submits as follows;

(i) It was unfair labour practice to summon security personnel to beat the grievant for whatever reason as the same is not part of the dispute resolution procedure.

(ii) The Respondent would only have a case against the grievant if he had gone past the mini shop without paying for the meat and where he intended to get out of the exit gate without a gate pass authorizing passage of the product he had.

(iii) If indeed the grievant had stolen from the Respondent and that theft being a criminal matter and where there was enough evidence against the grievant, he should have been handed over to the police, being a law enforcement agency, to prosecute the grievant for the alleged theft and that beating him up was completely unlawful.

(iv) All the same, the Respondent had prepared to dismiss the grievant from employment and did not:

a) Observe Section 41 of the Employment Act, 2007 as the first step towards procedural fairness.

b) Provide proof as required under Section 43 of the Employment Act, 2007.

c) Ensure that the reason for which they were acting against the grievant was valid and fair as demanded under Section 45 of the Employment Act, 2007.

This therefore rendered the dismissal of the grievant unfair and unlawful.

The respondent rubbishes the claim and submits a case of unworthiness of the relief sought on grounds that the dismissal of the grievant was justified. She particularly enjoins compliance with section 41 of the Employment Act, 2007 and seeks to rely on the authority of Mkala Chitavi v Malindi Water & Sewarage Co. Ltd (2013) eKLR, I discussed what section 41 entails as follows;

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.”

The respondent in the penultimate seeks to rely on section 44 (4)(g) of the Employment Act, 2007

(4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (32) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if:-

f) …..

g)an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.

This matter tilts in favour of the claimant. Why? The claimant cites violation of section 41 whereas the respondent cites the same in an amplification of a case of procedural fairness in the termination of the grievants employment. The respondent however fails to demonstrate this in evidence. She does not produce any evidence to support disciplinary proceedings in which the claimant or even grievant were involved. She merely cites section 41 and 44 (4) (g) and ends at that. This is no proof of a case of compliance on the parameters of substantive and procedural fairness as is required by sections 43 and 41 of the Employment Act, 2007.

On a balance of probability and preponderance of evidence as is ably displayed in the claimant’s annexed list of documents, this matter clearly tilts in favour of the claimant. I therefore find a case of wrongful, unfair and unlawful termination of employment and hold as such. This answers the 1st issue for determination.

The 2nd issue for determination is whether the claimant is entitled to the relief sought. She is. Having won on a case of unlawful termination of employment, she becomes entitled to the relief sought.

I am therefore inclined to allow the claim and order relief as follows;

i. One (1) months salary in lieu of notice……………………………Kshs.13,000. 00

ii. 5 days worked in May 2010 = 5 x 13,000……………………….Kshs.2,097. 00

31

iii. Outstanding leave of 32 days = 9500 x 32 x 12……………..Kshs.9,995. 00

365

iv. 12 months salary as compensation for unlawful

termination of employment……………………………………….Kshs.154,000. 00

Total of Claim…………………………………………………….Kshs.179,092. 00

v. The costs of this claim shall be borne by the respondent

Dated and signed this 19th day of July, 2018.

D.K. Njagi Marete

JUDGE

Delivered and signed this 25th day of July, 2018.

Maureen Onyango

PRINCIPAL JUDGE

Appearances

1. Mr. Nyumba for the claimant union.

2. Mr. Wafula Instructed by Milimo Muthomi & Company Advocates for the claimant.