[2018] KEELRC 1862 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 1126 OF 2011

TOM ONYUNA...........................................CLAIMANT

- VERSUS -

ADDAX KENYA LIMITED..................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 8th June, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 12. 07. 2011 through I.N. Nyaribo & Company Advocates. The claimant prayed for judgment against the respondent for:

a) General damages.

b) Exemplary damages.

c) Costs of the suit.

d) Interest on (i), (ii), and (iii) above at Court rates.

e) Any other relief the Honourable Court may deem fit and just to grant.

The respondent filed the memorandum of defence on 27. 07. 2011 through Kaplan & Stratton Advocates.

The claimant was employed by the respondent as an export assistant by the contract of employment signed on 12. 01. 2008 and effective 15. 01. 2008. The claimant was promoted to the position of Depot Manager effective 01. 07. 2008. He was terminated from employment on 19. 01. 2011.

The claimant was given a show cause notice and accorded a disciplinary hearing on 19. 01. 2011. The allegations against the claimant were as follows:

a) Issuance of product without documented authorization from the respondent’s head office.

b) Working for a competing oil company (Oilcity) while still in the respondent’s employment.

At the disciplinary hearing the claimant had a representative as per section 41 of the Employment Act, 2007. The disciplinary hearing concluded that the claimant’s actions as per the case against him had potentially exposed the respondent to fraud and that the element of trust had therefore been completely eroded.

The record of the disciplinary hearing shows that the claimant’s representative one James Ngugi noted that the claimant had admitted the wrongdoing. The record further states that the claimant admitted that he had made an error in judgment in the way he handled both the truck loadings and the decision to assist Oilcity and he pleaded for clemency since his intentions had all along been good and that he honestly thought he was not exposing the respondent but rather helping in the growth of business.

The claimant’s employment was terminated by the letter dated 20. 01. 2011 on account of failing to follow the laid down procedure in the issuance of company product to customers; and his unilateral decision to act on behalf of another competing oil company while still in the respondent’s employment and without consulting the respondent’s management. The termination letter stated that the claimant’s final dues were Kshs. 238, 987. 00 comprising Kshs. 70,000. 00 a month’s pay in lieu of notice; Kshs. 44, 799. 12 pay for work up to 19. 01. 2011; Kshs. 5, 658. 84 for 2 days’ accrued leave; Kshs. 212, 206. 35 being severance pay at one month pay for every year worked; and a certificate of service for the duration of employment with the respondent.

The only issue for determination is whether the claimant’s termination was unfair. The Court has considered the pleadings, the documents and the submissions on record. The claimant was accorded a notice and a hearing in accordance with section 41 of the Employment Act, 2007. The record of disciplinary hearing as per minutes filed show that the claimant admitted the allegations and asked for clemency. The respondent has also filed documents establishing or verifying the allegations. Further the claimant attached to his submissions his statement substantially admitting that he had assisted Oilcity Limited; and further conceding there had been a breach of respondent’s policies about loading a truck in cases of cash paying customer (though there had been no loss in terms of product or money). The Court finds that the respondent’s conclusion that the claimant’s actions potentially exposed the respondent to fraud and trust had been eroded between the parties cannot be faulted.

The Court returns that the reasons for termination were valid as envisaged in section 43 of the Act and related to the respondent’s operational requirements and the claimant’s conduct as envisaged in section 45 of the Act. Accordingly, the termination of the claimant’s contract of service was not unfair.

The Court further returns that the claimant is not entitled to the remedies as prayed for as they were not justified in view of the finding that the termination was not unfair.

The Court has considered that the reasons for termination potentially exposed the respondent to loss or fraud but no actual loss had occurred. In that consideration, while the respondent has been successful, each party will bear own costs of the suit.

In conclusion the claimant’s suit is hereby dismissed with orders that each party will bear own costs of the suit.

Signed, dated and delivered in court at Nairobi this Friday 8th June, 2018.

BYRAM ONGAYA

JUDGE