1. Godfrey Muhambi (the Claimant) sued Kenya Kazi Services Ltd (the Respondent) on 13 October 2023 alleging unfair termination of employment and breach of contract.
2. The Respondent filed a Response on 8 December 2023, and the Claimant filed a Reply to the Response on 8 January 2024. Agreed Issues were filed on 13 February 2024.
3. The Cause was heard on 5 March 2024. The Claimant and his former supervisor and Head of Human Resources with the Respondent testified.
4. The Claimant filed his submissions on 2 April 2024 (should have been filed and served before 22 March 2024).
5. The Respondent filed its submissions on 12 April 2024.
6. The Court has considered the pleadings, evidence, and submissions.
Unfair termination of employment
Procedural fairness
7. Section 35(1)(c) of the Employment Act, 2007 contemplates written notice of termination of employment whilst section 41 of the Act requires the employer to grant an opportunity to the employee to make representations before deciding to terminate. The employee is entitled to have a colleague present during the hearing, and if a member of a trade union, a representative of the union should be present.
8. In challenging the procedural fairness of the termination, the Claimant asserted that the Respondent did not adhere to the requirements of the Human Resource Manual in that the Disciplinary Committee included 2 junior officers and the rules of natural justice were not adhered to. The Claimant also contended that no investigations were conducted and that witnesses were not presented during the disciplinary hearing.
9. The Claimant did not produce a copy or extract of the Respondent’s Human Resources Manual to support the challenge to the composition of the Disciplinary Committee or that investigations were necessary and that the Respondent failed to comply with the Manual provisions on investigations.
10. The Court will now address its mind to whether the Respondent complied with the statutory requirements on procedural fairness.
11. The Respondent issued a show-cause dated 23 February 2023 to the Claimant. The show-cause indicated the allegation the Claimant was required to respond to and requested him to respond before 27 February 2023.
12. The Claimant responded to the show cause notice in writing on 27 February 2023 and on 2 March 2023, he was invited to attend a disciplinary hearing on 6 March 2023.
13. The invitation letter advised the Claimant that he was free to present witnesses and could be accompanied by a colleague of his choice. The invite was copied to a Shop Steward.
14. The Claimant attended the hearing and was afforded an opportunity to make representations and the hearing was followed with a dismissal. The Claimant appealed and the Appeal Committee gave him 2 days off to obtain information about the hotels which issued him with the receipts.
15. Since the Respondent notified the Claimant of the allegations to confront and granted him an opportunity to make written and oral representations, alerted him to the right to be accompanied, and also processed his appeal, the Court is satisfied that the Respondent complied with the statutory procedural fairness requirements.
Substantive fairness
16. Sections 43 and 45 of the Employment Act, 2007 place a burden on the employer to prove the validity and fairness of the reasons causing the termination of an employment contract.
17. To discharge the burden placed on it, the Respondent called its Head of Human Resources to testify. A significant part of the witnesses’ evidence consisted of records required by the Employment Act to be kept by an employer in the normal course of employment.
18. The reason for the dismissal of the Claimant was the falsification of receipts to make reimbursement claims for accommodation and meals.
19. The Respondent’s witness testified that its curiosity was raised when the Claimant presented receipts seeking reimbursement but with uniform amounts from different service providers. The Respondent’s Head of Operations called the contact numbers in the receipts but they disowned the receipts. A verification of Kenya Revenue Authority PIN numbers on the receipts established that the PINs did not belong to the hotels named in the receipts.
20. The Claimant did not deny providing the receipts to support his claims for reimbursements. When the validity of the receipts was questioned, he indicated that he could not explain.
21. When the Claimant appeared for the appeal disciplinary hearing, he was given 2 days off to obtain and provide evidence that the receipts were genuine and provide the location of the hotels that issued the receipts. He did not provide the details.
22. The Claimant was in a pole position to demonstrate to the Respondent that the receipts he had provided were genuine but he could not. The genuineness of the receipts was peculiarly within his knowledge. He knew his career was on the brink. He was given time off to obtain information to corroborate his word that the receipts were genuine but he could not.
23. The Respondent only needed reasonable cause to take disciplinary action against the Claimant.
24. It has proved that it had valid and fair reasons to dismiss the Claimant and the Court so finds.
Breach of contract
Salary for March 2023
25. A schedule of final dues produced by the Respondent shows that the Claimant was paid for the 9 days worked in March 2023. This head of the claim is not due.
Salary for April 2023
26. The Claimant was dismissed with effect from 9 March 2023 and a decision on the appeal was ultimately made on 20 April 2023 upholding the summary dismissal. The appeal process did not stay the dismissal, and the Claimant cannot validly claim salaries beyond the dismissal date.
Travel expenses for October and November 2022
27. The Claimant pleaded to be paid Kshs 43,320/- as travel reimbursements for October and November 2022, but he did not provide evidence to support this head of the claim, and relief is denied.
Mileage claims for January 2023
28. The Claimant did not provide evidence in support of this claim and relief is declined.
Unpaid mileage claims from July 2020 to January 2023
29. Under this head, the Claimant prayed for Kshs 487,329/- but again no evidence to support the claim was provided in either the written witness statement adopted as part of the evidence or during oral testimony.
Sales Commission
30. The Claimant made a plea for Kshs 705,822/- sales commission for 2021. No evidence for this claim was produced nor was a notice issued to the Respondent to produce records it kept of due sales commission, and the Court finds this head of the claim was not proved.
Accrued leave
31. The Claimant was paid Kshs 82,308/- on account of pending leave. The Claimant did not dispute the computations on leave by the Respondent and nothing turns on this head of the claim.
Gratuity
32. The payment of gratuity is either anchored on a contractual agreement or the law. The Claimant did not draw the attention of the Court to any contractual or legal basis for this head of the claim. Relief is declined.
Certificate of Service
33. A Certificate of Service is a statutory entitlement and the Respondent should issue one to the Claimant if one was not issued.
Breach of fundamental rights
34. The Claimant made an argument in the submissions asserting that since the Labour Officer was not notified of his dismissal and terminal dues were not paid within the prescribed time in section 18 of the Employment Act, 2007, the Respondent breached his fundamental rights.
35. The Court is of the view that these failures did not go to the substance of the validity or fairness of the dismissal.
Conclusion and Orders
36. The Court finds and declares that the summary dismissal of the Claimant was fair, and that save for a Certificate of Service, the Respondent was not in breach of contract.
37. The Respondent to issue a Certificate of Service to the Claimant within 21 days from today.
38. Each party to bear own costs.
2. The Respondent filed a Response on 8 December 2023, and the Claimant filed a Reply to the Response on 8 January 2024. Agreed Issues were filed on 13 February 2024.
3. The Cause was heard on 5 March 2024. The Claimant and his former supervisor and Head of Human Resources with the Respondent testified.
4. The Claimant filed his submissions on 2 April 2024 (should have been filed and served before 22 March 2024).
5. The Respondent filed its submissions on 12 April 2024.
6. The Court has considered the pleadings, evidence, and submissions.
Unfair termination of employment
Procedural fairness
7. Section 35(1)(c) of the Employment Act, 2007 contemplates written notice of termination of employment whilst section 41 of the Act requires the employer to grant an opportunity to the employee to make representations before deciding to terminate. The employee is entitled to have a colleague present during the hearing, and if a member of a trade union, a representative of the union should be present.
8. In challenging the procedural fairness of the termination, the Claimant asserted that the Respondent did not adhere to the requirements of the Human Resource Manual in that the Disciplinary Committee included 2 junior officers and the rules of natural justice were not adhered to. The Claimant also contended that no investigations were conducted and that witnesses were not presented during the disciplinary hearing.
9. The Claimant did not produce a copy or extract of the Respondent’s Human Resources Manual to support the challenge to the composition of the Disciplinary Committee or that investigations were necessary and that the Respondent failed to comply with the Manual provisions on investigations.
10. The Court will now address its mind to whether the Respondent complied with the statutory requirements on procedural fairness.
11. The Respondent issued a show-cause dated 23 February 2023 to the Claimant. The show-cause indicated the allegation the Claimant was required to respond to and requested him to respond before 27 February 2023.
12. The Claimant responded to the show cause notice in writing on 27 February 2023 and on 2 March 2023, he was invited to attend a disciplinary hearing on 6 March 2023.
13. The invitation letter advised the Claimant that he was free to present witnesses and could be accompanied by a colleague of his choice. The invite was copied to a Shop Steward.
14. The Claimant attended the hearing and was afforded an opportunity to make representations and the hearing was followed with a dismissal. The Claimant appealed and the Appeal Committee gave him 2 days off to obtain information about the hotels which issued him with the receipts.
15. Since the Respondent notified the Claimant of the allegations to confront and granted him an opportunity to make written and oral representations, alerted him to the right to be accompanied, and also processed his appeal, the Court is satisfied that the Respondent complied with the statutory procedural fairness requirements.
Substantive fairness
16. Sections 43 and 45 of the Employment Act, 2007 place a burden on the employer to prove the validity and fairness of the reasons causing the termination of an employment contract.
17. To discharge the burden placed on it, the Respondent called its Head of Human Resources to testify. A significant part of the witnesses’ evidence consisted of records required by the Employment Act to be kept by an employer in the normal course of employment.
18. The reason for the dismissal of the Claimant was the falsification of receipts to make reimbursement claims for accommodation and meals.
19. The Respondent’s witness testified that its curiosity was raised when the Claimant presented receipts seeking reimbursement but with uniform amounts from different service providers. The Respondent’s Head of Operations called the contact numbers in the receipts but they disowned the receipts. A verification of Kenya Revenue Authority PIN numbers on the receipts established that the PINs did not belong to the hotels named in the receipts.
20. The Claimant did not deny providing the receipts to support his claims for reimbursements. When the validity of the receipts was questioned, he indicated that he could not explain.
21. When the Claimant appeared for the appeal disciplinary hearing, he was given 2 days off to obtain and provide evidence that the receipts were genuine and provide the location of the hotels that issued the receipts. He did not provide the details.
22. The Claimant was in a pole position to demonstrate to the Respondent that the receipts he had provided were genuine but he could not. The genuineness of the receipts was peculiarly within his knowledge. He knew his career was on the brink. He was given time off to obtain information to corroborate his word that the receipts were genuine but he could not.
23. The Respondent only needed reasonable cause to take disciplinary action against the Claimant.
24. It has proved that it had valid and fair reasons to dismiss the Claimant and the Court so finds.
Breach of contract
Salary for March 2023
25. A schedule of final dues produced by the Respondent shows that the Claimant was paid for the 9 days worked in March 2023. This head of the claim is not due.
Salary for April 2023
26. The Claimant was dismissed with effect from 9 March 2023 and a decision on the appeal was ultimately made on 20 April 2023 upholding the summary dismissal. The appeal process did not stay the dismissal, and the Claimant cannot validly claim salaries beyond the dismissal date.
Travel expenses for October and November 2022
27. The Claimant pleaded to be paid Kshs 43,320/- as travel reimbursements for October and November 2022, but he did not provide evidence to support this head of the claim, and relief is denied.
Mileage claims for January 2023
28. The Claimant did not provide evidence in support of this claim and relief is declined.
Unpaid mileage claims from July 2020 to January 2023
29. Under this head, the Claimant prayed for Kshs 487,329/- but again no evidence to support the claim was provided in either the written witness statement adopted as part of the evidence or during oral testimony.
Sales Commission
30. The Claimant made a plea for Kshs 705,822/- sales commission for 2021. No evidence for this claim was produced nor was a notice issued to the Respondent to produce records it kept of due sales commission, and the Court finds this head of the claim was not proved.
Accrued leave
31. The Claimant was paid Kshs 82,308/- on account of pending leave. The Claimant did not dispute the computations on leave by the Respondent and nothing turns on this head of the claim.
Gratuity
32. The payment of gratuity is either anchored on a contractual agreement or the law. The Claimant did not draw the attention of the Court to any contractual or legal basis for this head of the claim. Relief is declined.
Certificate of Service
33. A Certificate of Service is a statutory entitlement and the Respondent should issue one to the Claimant if one was not issued.
Breach of fundamental rights
34. The Claimant made an argument in the submissions asserting that since the Labour Officer was not notified of his dismissal and terminal dues were not paid within the prescribed time in section 18 of the Employment Act, 2007, the Respondent breached his fundamental rights.
35. The Court is of the view that these failures did not go to the substance of the validity or fairness of the dismissal.
Conclusion and Orders
36. The Court finds and declares that the summary dismissal of the Claimant was fair, and that save for a Certificate of Service, the Respondent was not in breach of contract.
37. The Respondent to issue a Certificate of Service to the Claimant within 21 days from today.
38. Each party to bear own costs.