[2013] KEELRC 89 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT MOMBASA

CAUSE NO. 57 OF 2012

MWANAJUMA JUMA KUNDE...................................................CLAIMANT

VERSUS

KAPS MUNICIPAL PARKING SERVICES LTD …................RESPONDENT

J U D G M E N T

BACKGROUND

The claimant has sued the respondent claiming employment terminal dues and damages for breach of contract and unlawful termination. The respondent had denied liability and contended that the dismissal of the claimant was fair, lawful and warranted as the claimant was guilty of breach of the contract. The case was heard on 21/8/2013 and 4/9/2013 when the claimant testified as CW1 and Doris Mary Tatu and Paul Murikwa testified for the defence as Rw1 and RW2 respectively.

CLAIMANTS CASE

CW1 stated that she was employed by the respondent on 25/1/2007 as a parking assistant cum cashier. Her monthly salary was ksh.13000 which was later reviewed to ksh.13858. She worked until 8/8/2009 when she was send on a disciplinary leave for 14 days but when she resumed she was served with a dismissal letter effective from 9/9/2009. The reason for the dismissal was that the CW1 had been involved in fraudulent activities which led to loss of the respondent's revenue. She contended that she was dismissed before being heard on the alleged misconduct. According to her she was on a renewable fixed term contract ending on 30/4/2010. She maintained that no termination notice was served on as provided for under the letter of employment.

She prayed for payment in lieu of leave and notice. She also prayed for 14 days salary for August 2009, overtime and damages for breach of contract.

She denied the alleged involvement in fraudulent activities and accused the respondent of not being specific on the alleged fraudulent activities.

On cross examination she confirmed that she used to work from 7. 00am to 3pm which is 8 hours per day. She also confirmed that she utilized only 21 days leave for 2008.

DEFENCE CASE

RW1 is the respondent's office Administrator Mombasa branch. She confirmed that CW1 was employed by the respondent as a parking assistant and her duty was to collect revenue and issue receipts. The receipts books were issued in RW1's office and would be replaced when filled up.

In July 2009, RW1 discovered that some receipts books were missing and reported to her boss Mr. Kihumba. Investigations were conducted and in August RW2 told her that Nuru Ndamba, office cleaner was opening the store and giving out things to a tuk tuk.

RW1 then checked the serial numbers and noted the missing book's which she gave to her said boss. The boss then went to investigate in the streets and got one receipt which had been issued by Alfred Mwachiro, a parking assistant and brought him to the office. That the said boss also called the claimant for disciplinary hearing after which he send her on disciplinary leave.

That the claimant together with the other workers admitted the offence of theft of the receipt books and asked forgiveness. They also agreed to refund the money lost. She admitted that the claimant was terminated without notice. She confirmed that the claimant was on a yearly contract due to end on 30/4/2010. She also maintained that the claimant utilized her leave days.

On cross examination she admitted that the dismissal letter did not disclose the particulars of the fraudulent activities for which the claimant was dismissed. She also admitted that the claimant was never paid her dues after her dismissal.

RW2 is a security guard attached to the respondent's premises. On 8/9/2009 at 6. 20am he was on duty when Nuru reported to work and send him to buy milk. On his way to the shop he became suspicious and returned to the respondent's premises after 3 minutes. He found Nuru having opened the room and collected receipts and he saw her give them to another lady called Nuru who works for the municipal council who was aboard a tuk tuk. He thereafter reported that matter to Rw1 who summoned Nuru who gave out the receipts and promised to forgive her is she named the accomplices.

Thereafter RW2 saw RW1, Nuru, David and Ali go to town and return at about 2pm carrying a box containing receipt books. On cross examination RW2 confirmed that as at 8/9/2009 the claimant was on leave. After the close of the hearing the parties agreed to file written submissions but only the respondent filed.

ISSUES FOR DETERMINATION

The issues for determination arising from the pleadings, evidence and submissions are:

whether the claimant was on fixed term of contract.

Whether the said contract was wrongfully and unfairly terminated.

Whether the claimant is entitled to the reliefs sought.

ANALYSIS & DETERMINATION

In answer to the first issue for determination, the court has considered the letter of appointment dated 25/1/2007 (appendix 1) and the testimonies of CW1 and RW1. The said appointment letter clearly provided for a yearly renewable contract starting from 30/4/2007 when the claimant was supposed to finish heir probation. The testimonies of both CW1 and RW1 corroborate each other on fact that the claimant was on a yearly renewable contract scheduled to end on 30/4/2010. The court therefore finds and holds that the answer to the first issue is in the affirmative.

As regards the second issue for determination, the court is invited to consider whether the dismissal was both wrongful and unfair. Dismissal is wrongful when it is done through breach of a term of contract. In this particular case, the claimant alleges that the dismissal was without one month prior termination notice as provided by the employment contract and therefore it amounted to a breach. In addition she contends that the contract was breached because the reason cited for her dismissal was not justifiable.

On the other hand, dismissal is unlawful or unfair when it is done in breach of a statutory obligation. In this case the claimant alleges that she was never accorded a hearing before dismissal and the reason for the dismissal was not valid and justifiable. Section 41 of the Employment Act provides that before an employee is dismissed for incapacity, poor performance and gross misconduct under Section 44 of the Act, the employer shall invite the employee for a hearing in the presence of another employee or shop floor union representative of his own choice. Although the procedure for such hearing need not be a kin to court proceedings, the law leaves no option to the employer whether or not to hear the employee. Disciplinary hearing is a mandatory obligation in Kenya the breach of which amounts to unfair termination under Section 45 of the said Employment Act.

As regards the justification of the reason for the dismissal, Section 43 puts the whole burden of proving the reason for the dismissal on the employer. In this case the reason cited for the dismissal was that the claimant had involved herself in unspecified fraudulent activities. During the hearing the respondent explained that the fraudulent activities were stealing of receipt books and selling them to motorists to the detriment of the employer.

No evidence however was adduced to prove that the claimant stole any receipt books or involved herself in the fraud of selling the stolen receipts. She was not found in possession of any stolen receipts nor was any stolen receipt found anywhere connecting her with the fraud.

The court has noted the evidence of RW1 which suggested that only one stolen receipt sold by Alfred Mwachiro was recovered and thereafter all the other parking attendants were summoned to the office and confessed to their fraud. That after such confession they were all suspended to pave way for investigations.

The court views, the said statement by RW1 as being too general. It was a convenient way of recklessly uprooting both the wheat and the weed. Section 43(2) defines the reason for termination of employment as those matters which the employer genuinely believed to exist at the time of the termination and which made the employer to terminate the contract. The test of genuine believe on the part of the employer appears to be subjective. It is however trite that an objective test of a reasonable employer is to be applied in determining whether the reason for termination was justifiable. As such the court must always ask whether a reasonable employer in similar circumstances who have dismissed the claimant from services.

The present reason as earlier observed was not specific and the claimant was never heard before the dismissal. In her uncontested evidence, she was only suspended and told that the reason therefor was to follow later. That was never to happen because she was only served with a summary dismissal letter.

It follows therefore that there was no clear reason for the dismissal. The wording of the reason was vague and therefore not valid within the meaning of Section 45 of the Employment Act. The question is what offence did she commit, stealing of receipts books or selling stolen receipts or what?

The court finds that the investigations done by the respondent on the alleged fraud was shoddy and result thereof could not cause a reasonable employer to genuinely believe that the claimant was guilty of fraud involving stealing receipt books and selling receipts. Consequently the answer to the the second issue for determination is in the affirmative also.

In view of the forgoing finding, the court finds that the claimant is entitled to the relief sought subject to alterations. Under the prayer for breach of contract, I award the claimant one month salary in lieu of notice and salary for unexpired contract period upto 30/4/2010. I also award her salary for the 14 days not paid in August 2009. I will also award pay in lieu of 21 days leave for 2009/10 year plus 7 days leave carried forwarded from 2008/2009 year.

I however dismiss the prayer for overtime for lack of evidence and particulars. There was no prayer for compensation for unfair dismissal and as such no damages will issue. In any event even if such prayer was made the court would not grant it because the claimant has already been sufficiently put to the financial position she should have been without the breach of the fixed term contract.

DISPOSITION

in view of all the forgoing reasoning, I enter judgment for the claimant against the respondent for

one month salary in lieu of notice ….......................................13,858. 00

salary for September 2009-April 2010 (8x13585)...................110,864. 00

salary for 14 days in August 2009 (14/30x13858).................. 6,467. 06

144,123. 25

The claimant will also have costs and interest from time of filing the suit.

Signed, dated and delivered this 8th November 2013

ONESMUS MAKAU

JUDGE