[2015] KEELRC 447 (KLR)
The court found that the respondent complied with the procedural requirements of section 41 of the Employment Act, 2007 by giving the claimant notice and a hearing. The respondent also established valid reasons for termination under section 43, specifically the claimant's conduct on 7.05.2013, which included...
Source-derived case information.
- Citation
- [2015] KEELRC 447 (KLR)
- Parties
- Claimant: Margery Muthoni Ndwiga; Respondent: Daima Savings & Co-operative Society Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 17 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed.
- Judges
- B Ongaya
- Legal Topics
- Wrongful Termination, Unlawful Deductions, Disciplinary Process, Employee Misconduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margery Muthoni Ndwiga
Claimant
Daima Savings & Co-operative Society Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment was unfair.
- 2 Whether the claimant is entitled to Kshs.10,405.00 for alleged unfair deduction from final dues.
Ratio Decidendi
The court found that the respondent complied with the procedural requirements of section 41 of the Employment Act, 2007 by giving the claimant notice and a hearing. The respondent also established valid reasons for termination under section 43, specifically the claimant's conduct on 7.05.2013, which included screaming at a customer and mishandling a cell phone in the presence of staff and customers. These actions were deemed sufficient to justify termination. However, the deduction of Kshs.10,405.00 from the claimant's final dues was not supported by an administrative process or established while the claimant was in employment. Therefore, the deduction was unlawful, and the claimant was...
Court Disposition
Claim partly allowed.
Orders
- The termination of the claimant’s employment by the respondent was not unfair.
- The respondent to pay the claimant Kshs.10,405.00 by 1.11.2015, failing which interest at court rates to be payable from 6.06.2013 until full payment.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO. 17 OF 2015
MARGERY MUTHONI NDWIGA............................................................CLAIMANT
VERSUS
DAIMA SAVINGS & CO-OPERATIVE SOCIETY LIMITED................. RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 9th October, 2015)
JUDGMENT
The claimant filed the memorandum of claim on 12. 02. 2015 through Ndemo Mokaya & Company Advocates. The claimant prayed for judgment against the respondent for:
Wrongful termination of employment.
Unlawful deduction of Kshs.10,405. 00.
Damages for wrongful dismissal.
Damages for the unilateral termination of the services.
The memorandum of defence was filed on 11. 03. 2015 through Dickens M. Ouma, Legal Officer, Federation of Kenya Employers. The respondent prayed for a finding that the claimant’s termination was lawful and the suit is dismissed with costs.
The claimant was employed as a messenger on 17. 09. 1997. She was promoted to the position of a general clerk and at termination she earned Kshs.25,374. 00. The claimant testified that before the termination she was invited to a board meeting. Prior to the termination the claimant received a suspension letter dated 25. 05. 2013. The allegations related to events of 7. 05. 2013 when the claimant served as a clerk at the respondent’s M-Pesa shop.
The evidence was clear. The claimant encountered a customer who was not the owner of the cell phone the customer was using to withdraw some cash. The claimant as per the customer’s request reversed the transaction but again, the reversal had trouble because the customer had given the wrong cell phone number for the purpose. The claimant became angry and she screamed at the customer not to spoil her day. In the process, the claimant dropped on the floor, the cell phone she was using for the transaction. That conduct, in the respondent’s opinion, amounted to rudeness and was actionable indiscipline.
The claimant was subsequently dismissed with effect from 6. 06. 2013 by the letter dated 10. 06. 2013 on account of rudeness and abusive language against staff and customers, failure to properly perform duties as per the numerous previous warning letters, mishandling of respondent’s property such as throwing the phone on the ground on 7. 05. 2013 in presence of customers, lack of respect to her seniors, and withdrawal of money from customers’ accounts without their consent. The claimant’s appeal against the termination was declined.
The 1st issue for determination is whether the termination was unfair. It has been established that the claimant was given a notice and was heard as envisaged in section 41 of the Employment Act, 2007. The court has considered the evidence and finds that the respondent has established the reason for termination as envisaged in section 43 of the Act. The court finds that the reason was valid as it was established that on 7. 05. 2013 the claimant’s conduct in presence of staff and customers was unbecoming because she screamed and dropped the cell phone in presence of staff and customers as was established during the disciplinary process. The court finds that the termination was not unfair.
The 2nd issue for determination is whether the claimant is entitled to Kshs.10,405. 00 being unfair deduction from the final dues on account of alleged shortages. The shortages were never raised while the claimant was in employment. In the opinion of the court such alleged shortages would constitute grounds for an administrative disciplinary process but which never took place so that the allegations were not administratively established. The court finds that the claimant is entitled as claimed.
As the termination has been found not to have been unfair, the court returns that the claimant is not entitled to all other remedies as prayed for.
In conclusion, judgment is entered for the parties for orders as follows:
The termination of the claimant’s employment by the respondent was not unfair.
The respondent to pay the claimant Kshs.10,405. 00 by 1. 11. 2015 failing interest at court rates to be payable from the date of termination 6. 06. 2013 till full payment.
Each party to bear own costs of the suit.
Signed, datedanddeliveredin court atNyerithisFriday, 9th October, 2015.
BYRAM ONGAYA
JUDGE