1.The claimant by the memorandum of claim dated the February 26, 2016 and filed on the March 17, 2018 claims unfair and unlawful termination of employment. She alleges that on or about the January 3, 2012, the Respondent employed her as a professional service representative with a salary of ksh 55,000 pm.
2.The claimant averred that the Respondent without following due process abruptly and illegally terminated her employment on the January 11, 2016 and without any just cause which has occasioned loss and damage to the claimant.
3.The claimant prays for the following remedies;a.3 months’ salary in lieu of notice = ksh 165,000.00b.Service paysc.Severance paysd.General Damagese.Costs of this suitf.Interests on c and b above at court ratesg.Any otherh.Any other relief which the honourable court may deem fit to grant.
4.The Respondent filed a memorandum of appearance through the firm of Taibajee & Bhalla, Advocates on the May 10, 2016. It also filed a reply to the claim on the same date. The Respondent says that the employment contract was terminated upon just cause contrary to what is indicated in paragraph 4 of the claim as claimant was in constant breach of her employment contract which she had previously admitted. The Respondent avers that the claimant was initially posted to Mombasa till July 2014 when she was transferred to Nairobi on account of poor performance.
5.Further the respondent says that the claimant was then assigned to work in Nairobi and Nakuru regions but it was noticed that she later claimed for more mileage than expected. The Respondent states that upon the claimant being requested by her supervisor to provide an explanation clarifying the issue of mileage she provided falsified mileage records to her employer and pleaded that the same would not be repeated.
6.The Respondent avers that prior to the admission, the claimant had conveyed to the Respondent as mileage tabulation entries which were conflicting on the distance covered from Nairobi to various destinations. The Respondent further says that on the December 1, 2015, it received a letter from Valley Hospital Nakuru indicating that the claimant had conveyed to them a consignment of medical drugs based on non-existent Local Purchase Order (LPO) No 1357/1358 dated the October 26, 2015 and whose authenticity was denied by the said hospital.
7.It is the respondent’s contention that the claimant’s involvement in what was clearly an illegal enterprise was in complete breach of her duties and obligations. It is stated that the Respondent then sought for an immediate explanation from the claimant but she refused and failed to respond as required. The Respondent says that the claimant was duly warned that any further misconduct would necessitate disciplinary action that included termination of her employment. The respondent submits that the claimant was rightfully terminated and her claim should therefore be dismissed with costs.
8.Judith Nthambi Masinga the claimant gave sworn testimony and adopted her witness statement dated the February 26, 2016 as her evidence in chief. She is also relying on the documents contained in the list dated the February 8, 2019 as exhibits in the case. She testified that she worked for the Respondent for 4 years from January 2012 to January 2016 as a medical sales representative marketing pharmaceutical. She says that what was given as reasons for termination of her employment does not exist in the employment contract and she was not given a human resource manual at the commencement of her employment.
9.She informed the court that she was working diligently and there was no problem with her performance. She informed court that before termination there was no hearing done and that she was issued with warning letter in December 2015 whilst dismissal was in January 2016 and so the warning letter was not related to the termination.
10.On cross-examination, the claimant did testify that she was hitting her targets and had no issues with performance. She says she was selling drugs for human beings and she had to carry her duties diligently. She said that she was taken through procedures for Nairobi, Machakos, Nakuru and Nyahururu. She further says that the country manager raised the issue of false mileage which she explained and said was due to a typing error as she wrote 340 instead of 240 and subsequently she apologised. She further was asked if she was aware that Valley hospital wrote a letter of complaint of drugs delivered to them without an LPO and she said she was not aware of the same.
11.She further expounded that she wasn’t aware that Valley Hospital said that they were supplied with goods without an LPO and without authorisation. She was also not aware that the hospital wrote a letter on the October 8, 2016 asking for the supply to be picked as they were delivered without any LPO.
12.The respondent’s witness Ruth Muthusi gave sworn testimony. She said she is working as the HR Manager having joined the Respondent in the year 2019. She adopted the witness statement dated the June 21, 2016 as her evidence in chief. She also adopted the reply to the claim dated the May 9, 2016 as primary evidence in the case. The witness produced the filed six documents as exhibits in support of the case. The witness referred to exhibit ‘A’ and said that the claimant was told to account for her mileage by an email dated the December 1, 2015 with a reminder to respond on the December 7, 2015. The mileage covered was to be reimbursed to the employee and that the claimant had exaggerated the mileage covered.
13.The witness further also told court the Valley hospital complained that that drugs delivered were not ordered as they had not issued the LPO quoted which is required to be issued before the goods are delivered. So the witness testified that the reason for the termination of claimant’s employment was integrity ie misinformation to the company.
14.On Cross examination the witness said that the employees sign Tata code of ethics once they join the company and that the code of conduct is not produced in court. On being referred to the termination letter she said that it refers to clause 17 and does not link the termination directly to the warning letter. She added that she could not confirm whether the claimant was afforded a fair hearing before termination or confirm whether between the issuance of the warning letter on the January 21, 2015 and the termination letter on the January 11, 2016 the claimant committed any other similar offence.
15.On re-examination the witness said that the claimant breached the TCOC by giving false mileage and false LPOS and the company had no reason not to believe the letter which was from the hospital. She also said that the claimant admitted having exaggerated the mileage.
16.The claimant submits that a summary dismissal is allowed under the provisions of section 44 (3) and (4) of the Employment Act , 2007 for fundamental breach of the employment contract and for gross misconduct.
17.It is claimant’s further submissions that an employee said to be insubordinate is subjective and the one making the allegation should provide evidence for interrogation by the subject employee. The rationale is that where there is a fair reason for terminating an employee’s service, fair procedure demands that the employer does it in a way which conforms to the statute.
18.Section 41 of the Employment Act provides the procedure for termination of employment. Section 41 of employment act provide that an employee be accorded a hearing in the presence of a fellow worker of his choice or a shop floor union representative.. The claimant argues that the warning letter the Respondent relied upon raised an issue of insubordination which was never substantiated.
19.The claimant cited, inter alia, the Court of Appeal in the case of Standard Group Limited versus Jenny Luesby 2018 EKLR that:
20.The claimant submits that in this case she is seeking damages for wrongful and unfair termination of employment. Upon show cause and despite the written response, the feedback given was the termination of the contract. With regard to the adopted procedures by the Respondent, there was no adherence to the provisions of section 41 of the Employment Act , 2007. The claimant should have been called to give her defence in the presence of a fellow employee to argue her case.
21.The claimant also relied on section 41(2) of the Employment Act which provides that an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44 (3) of (4) hear and consider any representation which the employee may on the grounds of misconduct or poor performance, and in the presence of the person chosen by the employee within subsection (1) may make.
22.The claimant also relied on, inter alia, the case of Heoby Aloo Inyanga versus Stockwell One Homes Management Limited and Another 2022 eKLR where court held that the provision of section 41 (2) cannot be looked in any other way, it provides for a procedure, inter alia, to be adhered to before an employee summarily dismisses an employee.
23.The claimant argues that clause 14 of the contract which the Respondent makes reference to is non-existent. The claimant does not know the purported code of conduct which was never produced in court and the information in the termination letter is also not disclosed.
24.The court did not find any submissions for the Respondent in the file and CTS at the time of writing the judgement.
Issues for Determination
25.The court has analysed the pleadings and the evidence presented before court and frames the following issues as due for determination;a.Whether the termination of the claimant’s employment was substantially and procedurally fairb.The remedies, if any, the claimant is entitled to
26.It is not disputed that the claimant was employed by the Respondent from January 3, 2012 to the January 11, 2016. The agreed salary payable was ksh 55,000.
27.The termination letter dated the January 11, 2016 stated the reason for the termination of contract of employment as ‘acting contrary to Integrity of information of the TOC/Employment contract between yourself and Tata Africa Holdings K ltd”. There is then a reference that ‘clause 14 states that during your employment you shall not make any wilfully omissions or material misrepresentations that would compromise the integrity or our records, internally or externally in reports including financial reports.
28.The reason for the termination in the letter of termination is coached as ‘acting contrary to the integrity of information’ which is understood to refer to the alleged tempering with the mileage as had earlier been the subject of discussion between the claimant and her supervisors. It is not apparent why the Respondent elected to rely on the issue as ground for termination after the election to issue warning dated the December 21, 2015 in respect of the allegations. It is not alleged that there was a further misconduct following the warning letter. And there is also indication from the email communications of acceptance of the apology offered by the claimant.
29.To delve abit further into the issue of mileage claims the claimant showed 1120 KM from Nairobi to Nakuru and to Nyahururu and back to Nairobi. Claimant was asked to explain the mileage. In her explanation she said she covered 340 KMS on that trip instead of 240 kms. She admitted that was a mistake and it would not be repeated.
30.As for delivery of drugs to Valley hospital without an LPO that again is a serious misdemeanour of the part of the claimant. The respondents were not satisfied with the claimant’s explanation. The fact remained that the said hospital insisted they had not placed the order and the consignment had to be returned to the respondent.
31.The court is well persuaded that the respondent had solid reasons to discipline the claimant. The exaggerated mileage and lack of plausible explanation was a valid ground to discipline the claimant. As regards the allegation of the orders rejected by the Valley hospital, again that was a serious anomaly by the claimant. The claimant had worked for the respondent for about four years and no doubt knew the policies and the code of ethics of the respondent.
32.She may have been under pressure to close some sales but she was still bound to follow the right procedure in selling drugs to respondent’s clients.
33.The court having found that the respondent had solid grounds to invite the claimant to a disciplinary hearing in accordance to section 41 (1) of Employment Act now finds that is where the respondent failed. He did not invite the claimant for a hearing in the presence of a fellow worker of her choice to be present during her explanation.
34.In Cause 1792 of 2011 Nicholas Muasywa Kyula versus Farmchem Ltd Byram Ongaya J held that:
35In the case of Raymond Cherokwe Mrisha V Civicon Limited (2014) e KLR the court held that even if a claimant breached a contractual obligation the claimant was entitled to a fair hearing under the Employment Act.
36.This court as in the foreshadowed cause finds there was no due hearing and notification as contemplated by sections 41 and 43 of the Act notwithstanding that the respondents had valid grounds to even consider terminating the claimant on grounds of gross misconduct. The respondent failed in following the procedure requiring due notification and a hearing was not complied with. The termination was procedurally unfair. For that ground alone the court will enter judgement in favour of the claimant.
37.The next issue for determination is whether the claimant is entitled to the remedies as prayed for. The claimant has prayed for the 3 months’ salary in lieu of notice. The contract of employment at clause 11 provides for the 1month payment. The claimant is awarded 1 month salary in lieu of notice Ksh 55,000/.
38.The claimant never raised evidence that the remittances for the NSSF were not made. The prayer for service pay is rejected.
39.The claimant was dismissed from employment and there was no allegation of redundancy in the evidence tendered in court. The claim for severance pays is therefore irrelevant and is dismissed.
40.The claimant is awarded 1 month’s gross salary for un procedural termination 55,000x1= Ksh 55000/= considering the circumstances of termination were justified but procedure was flouted.
41.The total award is Kshs 110,000/= and each party will meet their respective costs.
42.Interest will accrue at court rates from date of judgement till full payment.