[2023] KEELRC 3083 (KLR)

Munyi v Kenya Chemical Workers Union (Cause E123 of 2022) [2023] KEELRC 3083 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 3083 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E123 of 2022

J Rika, J

November 30, 2023

Between

Grace Wairimu Munyi

Claimant

and

Kenya Chemical Workers Union

Respondent

Judgment

1. The Claimant filed her Statement of Claim, dated 22nd February 2022.

2. She states that she was employed by the Respondent Trade Union, as a Copy Typist, on 14th June 1996.

3. Due to her hard work, she was promoted to the position of Administration Manager in the year 2012.

4. She was sent on leave on 15th December 2021, and summarily dismissed on 19th January 2022, after 25 years of service.

5. She was tasked with handling the finance docket, though this was not in her job description. She made payments as authorized by the General Secretary, and kept receipts for all such payments.

6. Problems for the Claimant started, after new officials were elected into office. An audit was carried out, which found a receipt dated 10th June 2021, whose date and vehicle registration number appeared to have been altered.

7. She was issued a letter to show cause from the General Secretary dated 31st August 2021, requiring her to explain the fuelling records of the Respondent’s motor vehicle registration number KBW 632 Y, between 9th June 2021 and 15th June 2021.

8. She responded in detail on 31st August 2021. The Respondent did not write further, and the Claimant formed the view that the explanation sufficed. She was therefore shocked to receive a letter dated 23rd November 2021, inviting her for disciplinary hearing, concerning the same allegations.

9. She attended hearing where she repeated her explanation that the receipt in question was given to her by the Respondent’s Driver, and the money involved was given to the General Secretary of the Respondent. The General Secretary had visited the bank on the material day, and withdrawn the money subject matter of the audit query, for fuelling the Respondent’s vehicle.

10. The Claimant wrote further on 7th December 2021, a letter, detailing the facts, which was presented before the disciplinary committee.

11. She was advised to proceed on annual leave, through a letter dated 14th December 2021. She reported back on 19th January 2022, and was issued the letter of summary dismissal.

12. She wrote to the Respondent asking for minutes of the meetings leading to her summary dismissal. The Respondent did not avail the minutes. Her position was that the money was used by the General Secretary, and any alterations on the receipt, could only be explained by the General Secretary or the Driver.

13. Her last salary was Kshs. 110,000 monthly.

14. She prays for Judgment against the Respondent as follows: -a.Declaration that termination was unfair and unlawful.b.12 months’ salary in compensation for unfair termination at Kshs. 1,320,000. c.Service pay over a period of 25 years at the rate of 1 ½ months’ salary for each complete year of service, at Kshs. 4,180,000. d.Pro-rata leave pay at Kshs. 55,000. e.3 months’ salary in lieu of notice at Kshs. 330,000. f.Salary arrears at Kshs. 140,000. g.Refunds at Kshs. 11,780. h.General damages.i.Costs.j.Interest.

15. The Respondent filed a Statement of Response dated 15th March 2022. It is conceded that the Claimant was employed by the Respondent, for over 25 years, as pleaded in the Statement of Claim. She was in charge of the Respondent’s finances, between 2017 to 2021. She failed to explain why and how the receipt for Kshs. 10,000 was altered. She was aware about the consequences of retaining an altered receipt. She was summarily dismissed in accordance with fair procedure. She was issued a letter to show cause, she responded and was given a fair hearing. In responding to the letter to show cause, she told the Respondent that she was ready to leave the Respondent.

16. She could not be issued minutes of the disciplinary hearing, because she never went back to the Respondent’s office, after dismissal. The minutes can be availed to the Claimant if need be. She had the duty to report to the Respondent, that she was in custody of an altered receipt. She occasioned her own dismissal, by not being keen and careful with her tasks. Termination was fair.

17. She was summarily dismissed, and is not entitled to compensation or notice pay. She did not have salary arrears or pending annual leave days. She was not owed any money by the Respondent, by way of refunds. The Respondent urges the Court to dismiss the Claim with costs.

18. The Claimant gave evidence, and rested her case, on 18th April 2023. The Respondent did not call any witness and rested its case on the same date, 18th April 2023. The Claimant confirmed filing and service of her Closing Submissions, on 29th September 2023 when the Claim was last mentioned before the Court.

19. She adopted her Documents on record as exhibits 1-10, and her Witness Statement as her evidence-in-chief. She restated her employment history with the Respondent, and her terms and conditions of service. She was given the disputed receipt by the Respondent’s Driver. She did not alter the receipt. The date on the receipt had been altered. The amount was not altered. It was on record that she gave the General Secretary Kshs. 10,000 for fuel. He and the Driver collected the receipt from the petrol station and brought it to the Claimant. The General Secretary was not called as a Witness at the disciplinary hearing.

20. Cross-examined, the Claimant told the Court that she handled finances, from 2017 to 2021. This is when the Accountant was absent. She handled receipts and vouchers. She did not know that the receipt had been altered, until she was called to explain. She wrote on 24th January 2022 to the Respondent, in response to the letter of summary dismissal, saying it was okay, if the Respondent no longer needed her services. She did not appeal against the decision to summarily dismiss her.

21. She was taken through the disciplinary process. She was actively subscribed to the NSSF. She did not go on leave June-December 2021. She went on leave in December 2021, preceding her dismissal in January 2022. Notice of 3 months in lieu of notice, was provided for under her letter of appointment. She seeks arrears of salary from 2015. There was a salary increment made, but not paid. She did not have a document showing increment. Refund relates to personal finances applied in the Respondent’s operations. She did not demand for refund before coming to Court.

22. Redirected, the Claimant told the Court that she said it was okay if the Respondent did not need her services. She explained the context of her statement. The receipt was brought to her by the Driver. She asked the Respondent to reconsider its decision, which in effect was an Appeal. The money was given to the General Secretary. Her letter of appointment, paragraph 9, states that the Claimant would be entitled to gratuity. The Treasurer’s Report, exhibited by the Claimant, acknowledged obligations owing to various Employees. The Respondent acknowledged its indebtedness to the Claimant.

23. The issues are whether the Claimant was dismissed for valid ground; whether fair procedure was adopted; and whether she merits the remedies claimed.

The Court Finds: - 24. There is no dispute that the Claimant worked for the Respondent Trade Union from 1996 to 19th January 2022, when she was summarily dismissed. She worked as a Copy Typist initially, and lastly held the position of Administration Manager, earning a monthly salary of Kshs. 110,000. She worked for 25 years.

25. The reasons for the decision to summarily dismiss the Claimant, are stated in the letter of summary dismissal, dated 19th January 2022. It was said that the Claimant was not able to say whether it was the National Treasurer or the National General Secretary, who fuelled the car on 10th June 2021. The Claimant had cash sale receipt dated 10th June 2021, and another dated 15th June 2021. The Finance Committee found that the receipt dated 10th June 2021 had been altered. It was established that cash sale for 10th June 2021, was altered from that of 9th June 2021. It was established that the Claimant was involved in fraud.

26. Validity of reason[s]. Unfortunately for the Respondent there was no evidence supplied to the Court to support the reasons stated above. No questions were put to the Claimant concerning ETR receipt. The allegation in the letter of summary dismissal, stating that it had been established that the cash sale for 10th June 2021 was altered from that of 9th June 2021, was not supported by any evidence by the Respondent. It was not shown that if there was alteration of any receipt, the Claimant was involved.

27. She explained that the money was paid to the General Secretary, who used it to fuel the Respondent’s vehicle. She was consistent in her explanation at all times.

28. The Respondent opted not to call any Witness, to establish the serious allegations of fraud, made against the Claimant. Why was not the General Secretary availed to the Court to deny the explanation made by the Claimant? She even wrote to the Respondent after dismissal on 24th January 2022, explaining that she had consulted the Respondent’s bank, and established that the General Secretary was the officer who visited the bank and withdrew the money. She went into details, explaining that the Trade Union officials were travelling to Athi River on the following day, 11th June 2021, for official business. The money was used in fuelling the vehicle for the undertaking. The Court did not understand why the General Secretary or any other official designated by him, did not give evidence before the Court, to discount the Claimant’s evidence.

29. It is difficult to understand how the Claimant acted fraudulently, while she released the money for use by the Respondent’s officials, and while there was evidence that the money was withdrawn and used by the said officials for the intended purpose. What benefit would the Claimant draw, by altering the receipt?

30. Section 47[5] of the Employment Act, requires that in a claim for unfair termination or wrongful dismissal, the burden of justifying the ground for termination or wrongful dismissal, shall rest with the Employer. Section 43 requires that the Employer has valid reason, in justifying termination. Where the Employer has opted not to give evidence, unless the reasons pleaded are conceded by the Claimant, it cannot be concluded that the Employer has discharged this statutory burden on establishing validity of reason or reasons. The General Secretary should not have shied away from the Court. He should have attended Court, to show that the Claimant acted fraudulently, justifying summary dismissal.

31. There was no valid reason[s] to justify termination.

32. Procedure. The Claimant was issued a letter to show cause, with specific allegations. She was granted the opportunity to respond, which she utilized maximally, answering every allegation. She was heard, though not in the company of a colleague of her choice. It is not likely that the Respondent would avail to her its representative in a matter where the Respondent was the prosecutor. The Respondent, as a well-established Trade Union was aware however, of the Claimant’s right to be accompanied by a workmate of her choice to the disciplinary hearing, but did not advise her accordingly.

33. It is correct as stated by the Claimant that she appealed the decision to summarily dismiss her, through her letter dated 24th January 2022. She expressed clear grounds of appeal, and requested the Respondent to reconsider the decision to summarily dismiss her. The Claimant asked the Respondent to deal with her Appeal within 7 days.

34. There is no evidence that the Respondent dealt with the Appeal, within 7 days or any number of days. There is no evidence of hearing on appeal, or a decision made on appeal, relating to any of the grounds raised by the Claimant.

35. Procedure was not fully in conformity with the minimum statutory standards of fairness and rules of natural justice, contemplated under Sections 41, 45[2] [c] and 45[4] [b] of the Employment Act.

36. Termination was unfair for want of valid reason[s], as well as fair procedure.

37. Remedies. The Claimant’s letter of appointment, dated 14th June 1996, provides for a termination notice period of 3 months, or payment of 3 months’ salary in lieu thereof. The prayer for 3 months’ salary in lieu of notice is granted at Kshs. 330,000.

38. The same letter provides for payment of gratuity to the Claimant. It provides for gratuity based on a rate of 1 ½ months’ salary for each year completed in service, based on the prevailing salary at the end of service. Clause 10 of the letter states that the Claimant’s basic salary would be deducted at 5% monthly, subject to a maximum of Kshs. 80 monthly, and remitted to the NSSF as contribution. The Respondent would make a similar contribution of Kshs. 80 monthly, on account of the Claimant. The letter of appointment does not say that the social security plan, under the NSSF regime, would void the clause for gratuity payment. The Court has considered that the Section 35[6] of the Employment Act, does not contemplate grant of social security benefits under the Act, as well as under the contract of employment. She would be presumed to have earned some pension under the NSSF statutory regime, pursuant to her contract of employment. The Respondent made a monthly contribution in favour of the Claimant’s pension account. She however merits gratuity for the period before the Employment Act came into force, the period between 1996 and 2007- a period of 11 years. She is granted gratuity at the rate of 1 ½ months’ salary, over a period of 11 years [ Kshs. 110,000 x 1. 5 x 11 years] = Kshs. 1,815,000.

39. The Respondent’s Treasurer’s Report, submitted to the National Delegates Congress at Sandton Palace Hotel in Nairobi, on 15th May 2021, gave an account of money owed to the Respondent by Employers in trade union dues, and also, an account of money owed by the Respondent to its staff, in salary arrears. The Claimant was listed at number 4 on this list, and the amount owed to her is shown at Kshs. 140,000. She is granted the prayer for salary arrears at Kshs. 140,000.

40. There is no proof for pending refunds, and general damages. There is no justification for the prayer for general damages simultaneously with that for compensatory damages.

41. It has been established that the Claimant’s contract was unfairly terminated. There was no valid reason shown to justify termination. Procedure was flawed. She had worked for a considerable period of 25 years. She did not contribute to, or cause, the circumstances leading to termination. Clause 4 of her letter of appointment states that she would be permanent and pensionable staff, on successful completion of probation. She therefore expected to continue serving, until retirement. She has been granted other terminal benefits, including a handsome gratuity payment, in accordance with her terms and conditions of service. She is granted equivalent of 9 months’ salary in compensation for unfair termination at Kshs. 990,000.

42. Costs to the Claimant.

43. Interest granted at court rate, from the date of Judgment till payment is made in full.

In Sum It Is Ordered: -a.It is declared that termination was unfair.b.The Respondent shall pay to the Claimant, notice at Kshs. 330,000; gratuity at Kshs. 1,815,000; salary arrears at Kshs. 140,000; and compensation for unfair termination equivalent of 9 months’ salary at Kshs. 990,000 – total Kshs. 3,275,000. c.Costs to the Claimant.d.Interest granted at court rate, from the date of Judgment till payment is made in full.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 30TH DAY OF NOVEMBER 2023. JAMES RIKAJUDGE