[2018] KEELRC 1903 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT MOMBASA

CAUSE NUMBER 329 OF 2015

BETWEEN

MOHAMED MAHMUD BADIKUU..........................................CLAIMANT

VERSUS

CARGILL KENYA LIMITED..............................................RESPONDENT

Rika J

Court Assistant: Benjamin Kombe

Aziz & Associates, Advocates for the Claimant

Federation of Kenya Employers for the Respondent

__________________________________________

JUDGMENT

1. The Claimant filed his Statement of Claim, on 19th May 2015. He states he was employed by the Respondent as a Warehouse Clerk on 1st January 1999. His contract was terminated by the Respondent on 17th December 2013 on allegations that the Claimant was involved in theft of Respondent’s bags of tea. His salary, as of this date, was basic of Kshs. 25,185 and house allowance of Kshs. 5,014. He was charged in the Chief Magistrate’s Court Criminal Case Number 2918 of 2013 at Mombasa, with the offence of stealing by servant. He was released by the Court for want of evidence. He states his contract was terminated without the benefit of a hearing. It was unfair and contrary to rules of natural justice. He asks the Court to declare termination was unfair, and grant him the following orders against the Respondent:-

a) 1 month salary in lieu of notice at Kshs. 30,199.

b) Salary for 17 days worked in December 2013 at Kshs. 14,271.

c) 26 hours’ overtime at Kshs.1. 50 per hour, amounting to Kshs. 5,308.

d) Gratuity at Kshs. 188,887. 50.

e) 12 months’ salary in compensation for unfair termination at Kshs. 302,220.

f) Costs and interest.

2. The Respondent filed its Statement of Response, on 23rd June 2015. It is agreed the Claimant was employed by the Respondent in the position indicated in the Claim. His contract was lawfully terminated, for attempting to steal Respondent’s bags of tea. He was given a disciplinary hearing. He failed to exonerate himself. He was offered 1 month salary in lieu of notice; 17 days’ salary; and 13 hours’ overtime pay. His pay slip shows the Respondent was contributing to N.S.S.F, and the Claimant is therefore not entitled to service gratuity. There was no provision for gratuity in Claimant’s contract. Termination was fair and the prayer for compensation is similarly undeserving. The Claim should be dismissed with costs to the Respondent.

3. The Claimant gave evidence, and closed his case, on 27th June 2017. The Respondent, with the consent of the Claimant, opted not to give evidence, relying of its Pleadings and Submissions on record. Proceedings closed on 18th September 2017.

4. The Claimant testified he was employed by the Respondent on 4th January 1999. He was the Warehouse Clerk in charge of tea blending, by the time of dismissal. He worked 8 hours normally, but on other occasions did excess hours, depending on the volume of work. There was a complaint by the Respondent on 28th November 2013 about theft of some bags of tea. He was asked to show cause why he should not face disciplinary action, through a letter dated 3rd December 2013. He replied on the same day. He was suspended, and taken through a disciplinary hearing. He was told somebody had implicated him in theft of the bags of tea. He had before the disciplinary hearing been arrested and charged for the offence of stealing by servant. The criminal proceedings culminated in his acquittal.

5. He did not sign the minutes of the disciplinary proceedings. There were significant omissions in the minutes. The handwritten version would show discrepancy. He had never received a warning letter. The Warehouse Supervisor was dismissed after the Claimant, as was the Operations Manager who was part of the Panel that oversaw disciplinary hearing. The Claimant was advised of his right of appeal. He appealed to the Managing Director without success. His performance review was good. The allegations on Claimant’s involvement were never investigated by the Respondent. All Employees were lumped together as suspects, regardless of their shifts.

6. Cross-examined, the Claimant stated he checked arrival of bags of tea on this date. He marked the bags as they arrived. He did not recall how many bags he marked to have arrived. A Security Guard implicated him. The Claimant left work at around 5. 00 p.m. on 28th November 2013. He did not know how many bags had been received. Typed minutes of the disciplinary proceedings were altered. The Claimant requested for the handwritten minutes through his letter of appeal addressed to the Managing Director. He did not exhibit this letter in Court. He was not paid salary for 17 days worked in the last month of employment. He worked 26 hours overtime in November 2013. He was actively subscribed to the N.S.S.F. He did not know that he was ineligible for service pay.

7. The Respondent submits that investigations carried out by the Respondent, showed the Claimant gave a Security Guard some money to watch over certain bags of tea at the Warehouse. The Guard confirmed he was told by the Claimant that the bags would be collected by certain Persons on another date. The Guard accepted the money, informed the Supervisor, who in turn, alerted the Operations Manager. The Respondent had reason to terminate Claimant’s contract. The Claimant was taken through a fair disciplinary process. He was paid notice pay, 17 days’ salary and overtime as shown in the pay slip of December 2013. He was subscribed to the N.S.S.F, and not eligible for service pay. Termination was fair, and compensation is unmerited.

The Court Finds:-

8. The Claimant was employed by the Respondent as a Warehouse Clerk. He was in charge of tea blending. He was employed in 1999, and was dismissed on 17th December 2013, on allegations that he was involved in attempted theft of Respondent’s bags of tea. He was arrested, charged and acquitted. He was taken through a disciplinary hearing and dismissed.

9. The Court is not satisfied that the Respondent had valid reason, in dismissing the Claimant. There was no evidence placed before the Court to establish valid reason. The submission by the Respondent that the Claimant gave money to a Security Guard, to watch over Respondent’s bags of tea earmarked for stealing, is unsupported in evidence. The Security Guard who made this allegation was not called as a Witness, or record a Witness Statement or Affidavit. The Supervisor, to whom the Guard is said to have revealed this information, was similarly not availed to Court either in person, or through his personal, written word. The Claimant was taken through a criminal trial. He was acquitted. In the absence of evidence from the Respondent, the Court has no ground to agree with the Respondent that there was valid reason justifying termination. All that the Respondent sought to do was, cast aspersion on the innocence of the Claimant, while cross-examining him. This did not result is establishing reason, or reasons for termination. The reason justifying termination has not been proved.

10. Procedure was, by and large, fair. The Claimant was issued a letter to show cause why, he should not be disciplined. He replied. He was taken through a hearing. He was advised on his right of appeal. He appealed. His only complaint is that there were discrepancies between the handwritten and typed minutes recording disciplinary proceedings. He did not point out to the Court the nature of the discrepancies, and how they prejudiced him.

11. His December 2013 pay slip indicates he was paid notice pay; 17 days’ salary; and overtime. There is no reason why he prays the Court for grant of these benefits again. He acknowledges he was subscribed to the N.S.S.F, and that the Respondent contributed to his account consistently. He is not eligible for service pay under Section 35 [6] of the Employment Act. He has not shown that his contract entitled him to any other social security benefits, by whatever name called.

12. Having faulted termination on the ground of justification, the Court declares termination was unfair.

13. The Respondent shall pay to the Claimant equivalent 4 ½ months’ gross salary, at Kshs. 135,895 in compensation for unfair termination.

14. Costs to the Claimant.

15. Interest granted at 14% per annum from the date of Judgment till payment is made in full.

IN SUM, IT IS ORDERED: -

a) Termination was unfair for want of valid reason or reasons.

b) The Respondent shall pay to the Claimant: the equivalent of 4 ½ months’ gross salary at Kshs. 135,895 in compensation for unfair termination.

c) Costs to the Claimant.

d) Interest granted at 14% per annum from the date of Judgment till payment is made in full.

Dated and delivered at Mombasa this 8th day of June 2018.

James Rika

Judge