Unfair And Unlawful Termination?
21.In order to prove that an employee’s termination from employment was fair, an employer is required to satisfy two requirements, being that there was substantive justification to warrant such termination, and that the same was undertaken procedurally. Such was the determination in the case of Walter Ogal Anuro vs Teachers Service Commission  eKLR. That said, I will proceed to apply the two tests to the instant case.
22.Under Section 43(1) of the Employment Act (Act), an employer is required to prove the reasons for termination, and in absence thereof, such termination is deemed to be unfair. That is not all. Section 45 (2) (a) and (b) of the Act provides that a termination of employment is unfair if the employer fails to prove that the reason for the termination is valid, fair and related to the employee’s conduct, capacity or compatibility; or based on its operational requirements.
23.The aforestated position was reiterated by the Court of Appeal in the case of Chairman Board of Directors (National Water Conservation and Pipeline Corporation) vs Meshack M. Saboke & 2 others, (2019) eKLR.
24.From the record, the Claimant herein was summarily dismissed on grounds of stealing. His letter of summary dismissal is couched as follows:
25.As stated herein, an employer is required to prove that there was substantive justification to warrant an employee’s termination. Essentially, an employer must prove by way of evidence that the reasons for the termination of the employee were fair and valid.
26.It is noteworthy that the Claimant did not deny that he was with a stranger at the premises where he was assigned to work. However, he categorically denied the allegations of theft of the iron sheets from the Respondent’s client’s premises
27.Revisiting the reasons for the Claimant’s summary dismissal, I must say that the Respondent failed to prove that the same were fair and valid. I say so because first, the Respondent stated that its client reported seeing a person dressed in civilian clothes carrying the iron sheets out of his premises. During cross-examination, RW1 stated that the theft incident was recorded on the Occurrence Book. However, the said Occurrence Book was not exhibited in Court.
28.Further, it was indicated in the Claimant’s letter of summary dismissal that he admitted calling his neighbour who dashed in as he opened the gate to go in and collect the iron sheets. Again, the Respondent did not indicate the manner in which the Claimant’s admission was captured. Indeed, there was no evidence to confirm that the Claimant had made an admission to this effect.
29.It is also noteworthy that in her testimony before Court, RW1 stated that the Claimant’s mistake was letting a stranger into the client’s premises. Be that as it may, this was not the reason for his dismissal. The main reason for his dismissal was stealing and it was upon the Respondent to connect the Claimant to the said allegation.
30.As stated herein, the Respondent did not adduce evidence to back up its allegations that the Claimant was culpable of stealing at his place of assignment. Indeed, the respondent failed to draw a nexus between the alleged theft of the iron sheets and the Claimant, even to a remote extent. Simply put, the allegations against the Claimant were not substantiated.
31.To this end, I cannot help but find that the Respondent has not satisfied the requirements of Section 43 as read together with Section 45(2) (a) and (b) of the Act in that it had a valid and fair reason to summarily dismiss the Claimant on account of stealing.
32.Section 45(2) (c) of the Act provides that for termination to be fair, it ought to be in line with fair procedure. With respect to this, Section 41 of the Act requires an employer to accord an employee a hearing prior to termination. This procedure entails notifying the employee of the allegations he or she is required to respond to and thereafter granting him or her the opportunity to make representations in response to the said allegations, in the presence of another employee or a shop floor union representative of his or her choice.
33.In this case, the Respondent stated that the Claimant was given an opportunity to defend himself. Despite the Respondent's assertion, there was no evidence to support the same. For instance, there was no evidence that it notified the Claimant that it was considering terminating his employment on the allegations of theft. Indeed, it is worth mentioning that during cross-examination, RW1 admitted that the Claimant was not issued with a notice to show cause.
34.Additionally, there was no evidence that the Claimant was invited for a disciplinary hearing and if so, that he was heard on his defence in accordance with the provisions of Section 41 of the Act.
35.Further, cross-examined, RW1 testified that the Claimant was invited to appear orally for a disciplinary hearing. It was her further evidence that present at the disciplinary hearing was the Human Resource representative, the operations team and the Claimant’s supervisor. Be that as it may, there was no evidence in the form of a disciplinary record to confirm this fact.
36.Let’s suppose that the Respondent’s assertion is true that it undertook a disciplinary hearing, there is still a gap as it failed to confirm that the Claimant was notified of his right to call a union representative or a colleague to accompany him, ahead of the hearing.
37.Being the employer in this case, the Respondent carried the burden of proving that it subjected the Claimant to a fair process prior to terminating his employment.
38.All in all, the Respondent has failed to prove that it subjected the Claimant to a fair process in accordance with Section 45(2) (c) as read together with Section 41 of the Act. Ultimately, the Claimant’s dismissal from employment was procedurally unfair hence unlawful.
39.In the end, I find that the Claimants’ termination was both unfair and unlawful within the meaning of Section 45 of the Act.
40.As the Court has found that the Claimant’s termination was unfair and unlawful, he is entitled to compensation under Section 49(1) of the Act. To this end, he is awarded one (1) month’s salary in lieu of notice and compensatory damages equivalent to six (6) months of his gross salary. This award takes into account the length of the employment relationship as well as the circumstances attendant to the Claimant’s dismissal from employment.
41.The Claimant is further awarded leave pay as the Respondent did not exhibit his leave records in line with its obligation under Section 74(1) (f) of the Act. As a matter of fact, RW1 admitted during cross-examination that the Claimant did not proceed on leave. The Claimant is therefore entitled to payment in lieu of leave.
42.However, in terms of Section 28(4) of the Act, the Claimant’s entitlement shall be limited to 18 months preceding his termination from employment.
43.The Claimant has prayed for unpaid house allowance in the sum of Kshs 150,147.00. A perusal of his payslip reveals that he was paid house allowance in the sum of Kshs 1,026.00 per month. Therefore, this relief does not lie.
44.The claim for service pay is similarly declined as it is evident from the record that the Claimant was a registered member of the National Social Security Fund (NSSF). Therefore, he falls within the exclusions under Section 35(6) of the Act, hence is not eligible for payment of service pay.
45.The claim for unpaid public holidays is equally declined as the Claimant’s pay slip reveals that he was paid overtime. In this regard, the Claimant did not justify his claim by proving that the overtime pay did not cover the period he alleges he worked on public holidays. For this reason, the relief for unpaid public holidays cannot be sustained.