[2018] KEELRC 815 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT BUNGOMA

CAUSE NO. 24 OF 2017

(FORMERLY KISUMU CAUSE NO. 116 OF 2017)

(Before Hon. Justice Mathews N. Nduma)

VILLIER OMOLO NABUTEYA..........................CLAIMANT

VERSUS

MUMIAS SUGAR COMPANY LIMITED........RESPONDENT

J U D G M E N T

1. The suit was brought vide Memorandum of Claim filed on 27th March, 2017 seeking compensation for unlawful termination of employment, one month salary in lieu of notice, costs and interest.

Facts of the Claim

2. The Claimant was employed by the Respondent as a field assistant by a letter of appointment dated 16th June, 2011. The Claimant later became farmers’ assistant. The Claimant earned Kshs.45,878. 50 a month.

3. The Claimant worked continuously until 19th August 2016, when the Claimant was placed on suspension on grounds of filing false information in an appraisal form of one Mr. Rodgers Baraza Makokha for the period 1st March, 2015 to 31st January, 2016. It was alleged that the Claimant falsely reflected that the Claimant was on duty at the time and performed various duties when in fact, the Claimant had been involved in a road accident and was off-duty during the period.

4. The Claimant admits having filed the form and was aware of the accident but had succumbed from pressure from his supervisors who demanded that he fills the appraisal form to allow the contract of employment of Mr. Makokha to be renewed.

5. The Claimant was served with a show cause letter to answer to the charges at the time of suspension. The Claimant replied to the charges in writing on 23rd August, 2016 in which he explained his predicament.

6. The Claimant explained that a management team made up of services manager Mr. John Simiyu, Mr. Ben Watila and M/s. Nancy Nyende visited Mr. Rodgers Barasa Makokha at his residence where he was recuperating from injuries sustained from an accident and was on a wheel chair.

7. Upon that visit, the team asked the Claimant to fill the appraisal form which he proceeded to do.

8. The Claimant was called to a disciplinary hearing on 5th October, 2016 and attended without a union representative though he had been informed he could bring a representative. The Claimant defended himself.

9. The disciplinary panel was not satisfied with the Claimant’s explanation and the Claimant’s employment was terminated with effect from 6th October 2016, by a letter dated 5th October, 2016.

10. The reason for the termination was given as “fraudulently completing an appraisal form for an employee working under you.”

11. The Claimant was paid various terminal benefits set out in the Letter of Termination and was given a certificate of service.

Defence

12. The Respondent filed a response to the claim on 30th June, 2017 in which it denied the claim in its entirely and in particular stated that the Claimant’s employment was lawfully terminated for completing a false appraisal form for an employee who was not reporting to duty. That due process was followed in disciplining the Claimant.

13. The Respondent called RW 1 David Wanjala Juma, who worked as a Farm Assistant for the Respondent. RW 1 stated that the Claimant caused renewal of contract of one Rodgers Baraza, upon filling a false appraisal form. That Rodgers was involved in a road traffic accident on 29th August, 2016 and was not able to work. He was on wheel chair. Rodgers remained in the company payroll during this time, though was off duty. The Claimant filled an appraisal form on 28th January, 2016 in which it was depicted that the Claimant was at work during this period and had performed well. Rodger’s contract was renewed based on the information provided by the Claimant in the appraisal form. Management later found out that the Claimant had misled them. This led to the disciplinary action and termination of employment of the Claimant.

Determination

14. The issue in dispute is whether the employment of the Claimant was terminated for a lawful reason and in terms of a fair procedure. In terms of section 106, 107 and 108 of the Evidence Act, Cap 80 Laws of Kenya, as read with section 47(5) of the Employment Act, 2007 the Claimant bears the burden of proving his case on a balance of probabilities. The Claimant has failed to show that the Respondent had no justifiable reason to terminate his employment. The Respondent has successfully rebutted the evidence by the Claimant and has shown that, the Claimant filled a fraudulent appraisal form which misled management to renew the contract of an employee who worked under supervision of the Claimant. The Claimant admitted giving the false information stating that he did so under duress from his supervisors.

15. The Claimant had a moral and contractual duty to state the truth in the appraisal form and was wholly to blame for the false information he put there.

16. Accordingly, the Claimant has failed to prove his case on a balance probabilities. The entire claim has no merit and same is dismissed.

17. Each party to bear their own costs of the suit.

Judgment Dated, Signed and delivered in Kisumu this 18TH day of October, 2018

Mathews N. Nduma

Judge

Appearances

Bruce Odeny for Claimant

M/s. Alinaitwe for Respondent

Chrispo – Court Clerk