[2018] KEELRC 2302 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 1047 OF 2010

PHILIP N. MULWA…….……………….………….…………CLAIMANT

VERSUS

AFRICAN APPARELS EPZ LIMITED…..………………RESPONDENT

JUDGEMENT

1. By a memorandum of claim filed on 14th November, 2010 the claimant averred that he was employed by the respondent on 30th April, 2007 as a store assistant in-charge. He worked until 11th January, 2010 when his services were terminated. According to him, the termination was unlawful and without just cause. He averred that no formal warning of any kind was given by the respondent and that he was not accorded any hearing as per the rules of natural justice. The claimant further averred that he was not paid terminal dues upon dismissal.

2. The respondent on its part averred that claimant’s services were terminated in accordance with his terms of employment and the provisions of the Employment Act. According to the respondent on or about 3rd December, 2009 the respondent established that 6793 meters of fabric were unaccounted for in the stores where the claimant was the head of the department. The respondent in view of the above stated that the claimant carelessly and improperly performed his work occasioning the respondent great loss. This left the respondent with little choice to dismiss the claimant.

3. The respondent further averred that since the claimant received the dismissal letter he refused to collect his dues. Further being a case of theft the respondent averred that the claimant was only entitled to be paid for days worked upto 7th January, 2010 and any accrued leave on pro rata basis which amount was paid in the claimant’s bank account.

4. In his oral evidence the claimant stated that in the course of November, 2009 they received a consignment of rolls of fabric. They were 165. They were worked upon on 28th November, 2009 by shrinkage testing department. It was confirmed intact. On 2nd December, 2009 a request was made for a similar test. When he approved the request 7 rolls were found missing. He asked the supervisor to cross check and advice. He reported the matter to his boss. In the course of the discussion with his boss, the CEO overheard the discussion and said the fabric he was claiming to be lost was not the one.

5. He was asked to report the issue via email which he did and the police were called. His colleague and him were taken to Industrial Area Police Station and recorded a statement. They were later released and asked to report after one week. According to him, he was never charged in court nor was he surcharged for the lost fabric. After he gave his report on 7th January 2010 the HR called him and informed him that the respondent was not going to renew his contract in view of the loss. He was then issued with a dismissal letter. According to him there was no disciplinary hearing before the dismissal.

6. The respondent’s witness Ms Virginia Wanjira stated that she joined the respondent after the claimant had left. According to her, from the records it showed there were discussions before the claimant was dismissed. She further stated that records showed the respondent remitted NSSF and NHIF deductions otherwise the respondent would have been penalized. In cross –examination she stated that there was no record to show a meeting was held before the dismissal.

7. The respondent as an employer reserves the right to terminate the services of an employee. However, such termination must only be carried out for valid and or justifiable reasons and in carrying out the dismissal or termination; the employee must be given an opportunity to defend himself against the accusations. Failure to adhere to these two critical stages that is to say the existence of valid and or justifiable reasons for dismissal and following fair procedure for dismissal, would lead to a finding that the dismissal was unfair.

8. Both parties to the dispute do not deny that some fabric went missing from the respondent’s premises. The claimant as the person in charge of stores bore the ultimate responsibility for the stores and any loss which cannot be reasonably explained amounts to negligence on his part for which he could be validly dismissed. Whereas there was no dispute that some fabric went missing, there was no evidence produced before the court that the claimant was called upon to give an explanation over the loss before he was dismissed.

9. His dismissal letter refers to a discussion with human resource manager but does not disclose whether the said discussion if at all took place, the claimant was called upon to account for the loss or give his side of the story. This is contrary to the requirements of section 45 of the Employment Act which requires that before an employee is dismissed, he must be furnished with reasons for which his dismissal was being considered and given an opportunity to offer an explanation over the accusation leveled against him.

10. The court does not seem to find any evidence that this was done in this particular case. The court therefore finds that the dismissal was unfair in terms of procedure followed in carrying out the process.

11. The court therefore enters judgement against the respondent as follows:

a. One month’s salary in lieu of notice 25,000

b. Seven days wages for January 2010 5,833

c. Six months salary as compensation

for unfair termination of services 150,000

180,833

d. Costs of the suit

12. This award shall be subject to taxes and terminal dues if any already paid to the claimant.

13. It is so ordered.

Dated at Nairobi on this 16th day of February 2018

Abuodha J. N.

Judge

Delivered on this 16th day of February 2018

Abuodha J. N.

Judge

In the presence of:-

…………………………………...…… for the Claimant

………………………………………. for the Respondent