[2017] KEELRC 527 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NO. 94 OF 2013

PAMELA ATIENO OKECH……...……………..…..............CLAIMANT

VERSUS

MARSHALLS (E.A) LTD ……………...................RESPONDENT

JUDGEMENT

1. The claimant averred that she was employed by the respondent through an oral contract which was later reduced into writing on 1st June, 1993. Her contract was governed by the CBA in force from time to time. According to the claimant she served the respondent well and got promoted from time to time and that by the time of termination of the services she was a Supervisory Service Receptionist.

2. The claimant’s services were terminated on 18th Sepotember, 2012 when it was alleged that she breached the company policy on service by invoicing and wrongly entering journals. According to the claimant, prior to being dismissed she was summoned by the Human Resources Manager on 29th august, 2012 and informed that there had been an audit report which indicated that some receipts had been duplicated and was asked if she know anything about it which she denied. She was subsequently suspended and asked to report to the Human Resource Office on 5th September, 2012. The claimant further pleaded that three days into her suspension the workshop manager called her and asked her to go and see the Human Resources Manager but feeling it was witch hunt she refused to do so and resigned instead but the respondent declined her resignation saying she was under investigation.

3. On 15th September, 2012 the claimant was given a letter in which she was informed that the management had finished the preliminary investigation and that the report showed a loss of Kshs 222,158 through fraudulent journal entries. She was further informed that, she had been aversely mentioned in the report and was required to showcause why disciplinary action would not be taken against her. She wrote the show cause letter stating that she stood by the statement she gave to the police. The claimant therefore contended that her dismissal on grounds of misconduct was improper and malicious.

4. The respondent on its part pleaded that the claimant was dismissed for gross misconduct and after considering the report from the Divisional Criminal Investigation Department which revealed a loss of Kshs 200,000. The respondent further averred that the suspension given to the claimant by the respondent was purely intended to allow management to carry out their investigation.

5. Regarding the claimants resignation, the respondent averred that his was her sole decision after she realized she was going to face prosecution and that the respondent refused to accept the decision to ensure that she did not escape while the matter was still under investigation.

6. In her evidence in chief the claimant stated further that she was asked that there was a breach in invoicing which if she told the truth about she would have no problem. She denied knowledge of the breach. According to her, each person had their password and parameters for access. She stated that what she was called to was not a meeting as such but she found the human resource officer and the technical manager having tea as they conversed in their mother tongue. She stayed at the head office the whole day and was asked to come back the following day.

7. The following day some CID officer came around and interrogated her and asked her with her colleagues to report to CID Industrial Area. They did so for three days and nothing happened. They were later asked to go back to the respondent’s offices on Kampala Road. When she got back, she was issued with a show cause letter which she respondent to but was suspended on 29th August, 2012. She was later called and given a termination letter. It was her evidence that she was never accorded any hearing prior to termination of her services.

8. In cross-examination she stated that she joined the Union in 1993 but ceased to be a member in 2000 when she became Service Supervisor. She admitted she was told about breaches in invoicing but refuted any involvement since she was not a cashier and never dealt with invoicing. She further stated that she met the HRM and gave her explanation in response to the notice to show cause. According to her she resigned as a result of a different advice she got.

9. The respondent’s witness Mr Henry Omuto stated that the claimant was dismissed on account of fraud. The matter was investigated with the help of the police. According to him, the claimant was issued with a show cause letter and her services terminated after the police found her to have tampered with the invoices and issuing receipts to wrong people. According to Mr Omuto Kshs 200,000/- was lost in the process.

10. The claimant herein was accused of invoicing breaches and deletion of customers’ accounts leading to loss of approximately Kshs 200,000/-. She was suspended and later dismissed for gross misconduct. In claims for wrongful dismissal or unfair termination the burden of proof of the reason for dismissal or termination rests with the employer.

11. The claimant disputed the validity of the reason for her dismissal. The duty was therefore cast upon the respondent to demonstrate by way of documents attached to the pleadings and testimony by witnesses that indeed there was fraudulent invoicing and deletion of customer accounts. The respondent did not attach even one invoice which was allegedly fraudulent or exhibit any statement showing any customer was wrongly billed.

12. Whereas the court does not expect the management to have a water tight case against the employee before considering termination of services, the law requires that the reason or facts available raises the probability that the employee is more culpable of the accusations than not.

13. In this particular case, the respondent has failed to prove to the expected legal threshold that it had valid reasons to dismiss the claimant. The court therefore finds the dismissal unfair and awards the claimant as follows:

a. One month’s salary in lieu of notice 40,565. 00

b. 22 days of leave 28,255. 50

c. Salary for 18 days worked in September 201224,219. 00

d. Eight months salary as compensation for unfair

termination of services 324,520. 00

417,559. 50

e. Costs of the suit

14. The sum of Kshs 417,559. 50 is subject to statutory deductions.

15. It is so ordered.

Dated at Nairobi this 3rd day of November, 2017

Abuodha J. N.

Judge

Delivered this 3rd day of November, 2017

Abuodha J. N.

Judge