1. Abubakar Aslam Shikolio (the Claimant) was employed by Trans Mara Sugar Co Ltd (the Respondent) in October 2014 as a Finance Manager. On 1 January 2017, the Respondent engaged the Claimant as a Stores Manager.
2. On 23 July 2020, the Respondent gave the Claimant notice of the termination of his employment on the ground of gross misconduct.
3. The Claimant was aggrieved and he filed this Cause before the Court in Nairobi on 15 July 2021, alleging unfair termination of employment.
4. The Respondent filed a Response on 18 January 2022, and on 1 November 2022, the Cause was transferred to this Court.
5. The Cause was heard on 13 February 2023, 8 June 2023 and 11 June 2024. The Claimant, an Assistant Security Manager and Head of Human Resources testified.
6. The Claimant filed his submissions on 31 July 2024, and the Respondent on 3 September 2024.
7. The Court has considered the pleadings, evidence and submissions.
Procedural fairness
8. The Respondent issued a show cause dated 2 July 2020, and the Claimant acknowledged receipt. The show cause set out the allegations against the Claimant and called for a response.
9. The Claimant responded to the show cause in writing on 5 July 2020, after which he was called for an oral disciplinary hearing through a letter dated 10 July 2020.
10. Sections 35(1) and 41 of the Employment Act, 2007 outline the basic requirements an employer should meet to comply with the procedural fairness dictates before terminating an employment contract.
11. The Respondent notified the Claimant of intended disciplinary action and requested him to give a written response. The Respondent then gave the Claimant another opportunity to make oral representations. The minutes of the oral hearing indicate that the Claimant responded to questions and also presented a witness.
12. The Court is satisfied that the Respondent complied with the statutory requirements of procedural fairness.
Substantive fairness
13. By dint of sections 43 and 45 of the Employment Act,2007, the employer has the burden of proving the validity and fairness of the reasons for terminating an employment contract.
14. The allegation against the Claimant was wilful neglect/carelessness in the performance of work in that he failed to conduct weekly stock take of lubricants leading to a negative variance of 2949 litres.
15. The Respondent produced before the Court an investigations report. The report leaves no doubt that there was a variance.
16. The question, however, is whether it was the responsibility of the Claimant to undertake the stock reconciliations.
17. The Claimant asserted that he carried all his duties including stock takes and record keeping diligently and zealously as demanded by the contract and that despite informing the Respondent of the risks of storing valuables in the open outside the Store without any security, the Respondent did not heed the warnings.
18. According to the Claimant, he did not have any responsibility over stores not kept inside the stores and that the investigation\'s report by the Respondent pinpointed out those responsible for the theft of the lubricants.
19. Among the documents produced by the Claimant were a chain of emails, Stock Ledgers and Stores Procedures Manual.
20. The documents indicate that it was the responsibility of the Stores Manager to identify items which had fallen below the minimum stock level and also conduct a physical and system reconciliation. The Claimant was a Stores Manager.
21. In the Court’s view, the Claimant cannot shirk responsibility for stores kept outside the stores. The stores were still part of items he would issue. The mere fact that the lubricants were not kept inside a store could not relieve the Claimant of the duty of conducting weekly stock takes. Had he done the stock reconciliations, the theft would have been discovered earlier.
22. Nevertheless, the Respondent’s Security Officer acknowledged in his written witness statement which was adopted as part of evidence that investigations established that some contracted guards were responsible for the disappearance of lubricants during the night.
23. The Claimant had alerted the Respondent to the risks associated with keeping the lubricants in the open. The Respondent did not take any proactive steps to secure the lubricants. Its failures to hearken to the warnings from the Claimant was a security lapse which cannot be laid at the feet of the Claimant alone.
24. The Claimant failed in his duties The Respondent also failed to put in place adequate security measures to ensure the night guards did not steal the lubricants.
25. In light of the above, the Court finds that the termination of the Claimant’s employment did not accord with justice and equity as set out in section 45(4)(b) of the Employment Act, 2007.
Compensation
26. The Claimant served the Respondent for about 6 years. He failed to conduct weekly stock takes on a mistaken belief that stores kept in the open were not his responsibility. He warned the Respondent of the risks of keeping stores in the open.
27. Considering these circumstances and factors, the Court is of the view that the equivalent of 2 months’ gross salary as compensation would be fair and appropriate (gross salary was Kshs 165,404/-).
Conclusion and Orders
28. The Court finds that the termination of the Claimant’s contract did not accord with justice and equity.
29. The Claimant is awarded:
(i) Compensation Kshs 230,808/-
30. The award to attract interest at court rates from the date of judgment.
31. The Claimant was not blameless. He is awarded costs on half scale.
2. On 23 July 2020, the Respondent gave the Claimant notice of the termination of his employment on the ground of gross misconduct.
3. The Claimant was aggrieved and he filed this Cause before the Court in Nairobi on 15 July 2021, alleging unfair termination of employment.
4. The Respondent filed a Response on 18 January 2022, and on 1 November 2022, the Cause was transferred to this Court.
5. The Cause was heard on 13 February 2023, 8 June 2023 and 11 June 2024. The Claimant, an Assistant Security Manager and Head of Human Resources testified.
6. The Claimant filed his submissions on 31 July 2024, and the Respondent on 3 September 2024.
7. The Court has considered the pleadings, evidence and submissions.
Procedural fairness
8. The Respondent issued a show cause dated 2 July 2020, and the Claimant acknowledged receipt. The show cause set out the allegations against the Claimant and called for a response.
9. The Claimant responded to the show cause in writing on 5 July 2020, after which he was called for an oral disciplinary hearing through a letter dated 10 July 2020.
10. Sections 35(1) and 41 of the Employment Act, 2007 outline the basic requirements an employer should meet to comply with the procedural fairness dictates before terminating an employment contract.
11. The Respondent notified the Claimant of intended disciplinary action and requested him to give a written response. The Respondent then gave the Claimant another opportunity to make oral representations. The minutes of the oral hearing indicate that the Claimant responded to questions and also presented a witness.
12. The Court is satisfied that the Respondent complied with the statutory requirements of procedural fairness.
Substantive fairness
13. By dint of sections 43 and 45 of the Employment Act,2007, the employer has the burden of proving the validity and fairness of the reasons for terminating an employment contract.
14. The allegation against the Claimant was wilful neglect/carelessness in the performance of work in that he failed to conduct weekly stock take of lubricants leading to a negative variance of 2949 litres.
15. The Respondent produced before the Court an investigations report. The report leaves no doubt that there was a variance.
16. The question, however, is whether it was the responsibility of the Claimant to undertake the stock reconciliations.
17. The Claimant asserted that he carried all his duties including stock takes and record keeping diligently and zealously as demanded by the contract and that despite informing the Respondent of the risks of storing valuables in the open outside the Store without any security, the Respondent did not heed the warnings.
18. According to the Claimant, he did not have any responsibility over stores not kept inside the stores and that the investigation\'s report by the Respondent pinpointed out those responsible for the theft of the lubricants.
19. Among the documents produced by the Claimant were a chain of emails, Stock Ledgers and Stores Procedures Manual.
20. The documents indicate that it was the responsibility of the Stores Manager to identify items which had fallen below the minimum stock level and also conduct a physical and system reconciliation. The Claimant was a Stores Manager.
21. In the Court’s view, the Claimant cannot shirk responsibility for stores kept outside the stores. The stores were still part of items he would issue. The mere fact that the lubricants were not kept inside a store could not relieve the Claimant of the duty of conducting weekly stock takes. Had he done the stock reconciliations, the theft would have been discovered earlier.
22. Nevertheless, the Respondent’s Security Officer acknowledged in his written witness statement which was adopted as part of evidence that investigations established that some contracted guards were responsible for the disappearance of lubricants during the night.
23. The Claimant had alerted the Respondent to the risks associated with keeping the lubricants in the open. The Respondent did not take any proactive steps to secure the lubricants. Its failures to hearken to the warnings from the Claimant was a security lapse which cannot be laid at the feet of the Claimant alone.
24. The Claimant failed in his duties The Respondent also failed to put in place adequate security measures to ensure the night guards did not steal the lubricants.
25. In light of the above, the Court finds that the termination of the Claimant’s employment did not accord with justice and equity as set out in section 45(4)(b) of the Employment Act, 2007.
Compensation
26. The Claimant served the Respondent for about 6 years. He failed to conduct weekly stock takes on a mistaken belief that stores kept in the open were not his responsibility. He warned the Respondent of the risks of keeping stores in the open.
27. Considering these circumstances and factors, the Court is of the view that the equivalent of 2 months’ gross salary as compensation would be fair and appropriate (gross salary was Kshs 165,404/-).
Conclusion and Orders
28. The Court finds that the termination of the Claimant’s contract did not accord with justice and equity.
29. The Claimant is awarded:
(i) Compensation Kshs 230,808/-
30. The award to attract interest at court rates from the date of judgment.
31. The Claimant was not blameless. He is awarded costs on half scale.