Godwin Wanjala VS A. C. Nielsen Kenya Limited Godwin Wanjala VS A. C. Nielsen Kenya Limited

The Claimant filed his statement of claim dated 8^th September, 2021 and pleaded inter alia as follows: -
On or about 28th June 2013, the Claimant was offered employment by the Respondent as a Supervisor at Global Band 10 with an annual gross salary of Kshs. 360,000.00 which the Claimant accepted on 2nd July 2013.
On or about 7th July 2014, the Claimant was offered promotion by the Respondent to the position of an Independent Quality Control Executive (IQC Executive) at Global Band 9 with an annual gross salary of Kshs. 720,000.00 paid in 12 months installments, and a pension plan which includes employer contribution of 10% and an employee contribution of 6% of pensionable earnings and the remuneration was subject to relevant taxation and other statutory deductions. The Claimant accepted and duly executed on 15th July 2014.
The Claimant averred that he diligently discharged his duties as required of him in the position of an Independent Quality Control Executive (IQC Executive) at Global Band 9 and for this reason; the Respondent identified and appreciated his skills and subsequently promoted him.
The Claimant averred that vide a letter dated 1st September 2018 received by the Claimant on 11th September 2018, in recognition of the Claimant's skills, the Respondent promoted the Claimant to the position of IQC Senior Executive, CI in Global Band 7 with effect from 1st September 2018 with a pay increment to a monthly gross salary of Kshs. 94,952.00 which the Claimant accepted on 11th September 2018.
The Claimant averred that vide a merit increase letter dated 8th March 2021 received by the Claimant on 25th March 2021; the Respondent increased the Claimant's pay to a monthly gross salary of Kshs. 130,000.00.
The Claimant averred that the Claimant vide an email communication on 19th March 2021, rejected the merit increase letter on the remuneration package as it fell below his expected pay package for the work he did.
The Claimant averred that he did not seek for a new position of promotion but rather an appreciation of the workload that came through CI Ops EA and he sought for the review of the pay terms from the offered Ksh. 130,000.00 to Kshs. 180,000.00.
The Claimant averred that on 25th March 2021 he accepted the merit increase letter by duly executing it, however; his issue on pay increment from Kshs. 130,000.00 to Kshs. 180,000.00 had not been addressed.
The Claimant averred that he worked diligently in his position in promoting the company to a better position and enjoyed a mutual relationship with the Respondent up until the month of May 2021 when the Respondent started acting maliciously towards the Claimant by frustrating his efforts at the workplace.
The Claimant averred that the Respondent demanded the Claimant to submit updated goals from his team whereas the Claimant had already submitted his goals.
The Claimant averred that the Respondent continued frustrating him vide several email messages purporting that the Claimant had ignored instructions to submit the goals.
The Claimant averred that the Gaps and Respective action plans were set by the Claimant's team but MD singled out the Claimant for an update meeting even when she was sent the email with detailed gaps and Respective action plans agreed upon and went ahead to setup a meeting.
The Claimant averred that Vide a letter dated 25th May 2021 inviting the Claimant to show cause as to why the Respondent should not take disciplinary action against him for his alleged misconduct, the Claimant responded to the same and explained that he experienced a blackout on the aforesaid day of the meeting and was therefore unable to be part of the meeting. He went further and requested the Respondent to reschedule the meeting, however; the Respondent was adamant.
The Claimant averred that despite the Claimant having made efforts in reaching out to the Respondent explaining his reasons for failure to attend the meeting as scheduled on 25th May 2021, the Respondent went ahead and conducted a sham disciplinary hearing process that resulted into unlawful and unfair decision.
The Claimant averred that vide a letter dated 1st July 2021; the Respondent purported to terminate the Claimant's employment with effect from 2nd July 2021 on the basis of insubordination and gross misconduct.
The Claimant averred that Clause 8 of the employment contract which was on termination required a party to be given not less than 2 months written notice of termination or payment of two months' salary in lieu of such notice which was not the case herein.
The Claimant averred that his termination from employment was premature, unlawful and unfair.
The Claimant in the upshot prayed for the following against the Respondent;
The sum of Kshs. 260,000.00 being 2 months' salary in lieu of notice.
The sum of Kshs. 1, 560,000.00 being 12 months' pay for unfair termination.
The sum of Kshs. 96,426.00 being 18 days unpaid leave.
The sum of Kshs. 520,000.00 being service payment (1.5 months per year).
The sum of Kshs. 42,120,000.00 being legitimate expectation @ 27 years.
The sum of Kshs. 1,000,000.00 being damages for discrimination.
Interest on (a to f) above at the rate of 14% from the date of termination letter until payment in full.
General damages for unfair termination.
Certificate of service
Costs of the suit
Any other orders that the Court may deem fit to grant.
The Respondent filed its Memorandum of Defence and Counterclaim and averred inter alia:
1. The Respondent denied that the Claimant's employment contract was unfairly terminated as alleged or at all and denied as such, that the Claimant is entitled to the orders sought and stated that; the Claimant's employment contract was terminated on 2^nd July 2021 on grounds of insubordination and misconduct for absenteeism; the termination of the Claimant's contract was lawful and justified in the circumstances.
2. The Respondent averred that the Claimant was employed by the Respondent on or about 28^th June 2013. As at the date of his termination, the Claimant discharged his duties as the Respondent's Consumer Insights ("CI") Operations Project Team Lead for East Africa - Global Band 7. During the tenure of his employment in the said position, the Claimant was required to manage projects in CI Operations in East Africa while reporting to inter alia the CI Operations Lead East and West Africa. The Claimant was also required to adhere to the terms of his contract and the Respondent's policies.
3. The Respondent further averred that the setting of goals was a fundamental part of the Respondent's Global Requirements for all employees, as the Claimant will have been trained and aware of having been part of the organization for over six years. As such, the Claimant was required to submit his goals to his supervisor within set deadlines to enable a joint submission of goals for CI Operations in the Respondent's East and West Africa Region. A complete report could not be presented in the absence of all goal entries from the region. The Claimant was at all material times aware of this, having taken part in the goal setting process since 2013.
4. The Respondent averred that On or about 29^th April 2021, the Claimant and his colleagues were instructed by the CI Operations Lead East and West Africa to update their goals for 2021 on the Respondent's MyCareer Portal to be effected by 30^th April 2021.The Claimants supervisor shared his own goals as a guide and explained what was expected of the Claimant and his colleagues. The Claimant’s supervisor further directed that confirmation emails be submitted to him once each member of the team completed his goal.
5. The Respondent averred that the rest of the Claimant's team updated their goals onto the Mycareer Portal on or before the deadline of 30^th April 2021. They also sent emails to the CI Operations Lead East and West Africa confirming completion of the said goals. The Claimant however failed to update his goals and/ or send a confirmation email before the deadline. The Claimant's supervisor sent him an email on 4th May 2021 asking him to update his goals on the said portal which elicited no response from the Claimant. A second follow up email was sent on 5th May 2021, to which the Claimant replied stating that his goals had been submitted that day and no reasons were advanced for the delay.
6. The Respondent averred that on 18^th May 2021, the CI Operations team received a further request to update their goals as those initially submitted were scant. This was to be completed on the same day by 4pm, Kenya time. Similarly, the Claimant's supervisor shared his own goals as a guide and explained what was expected from the Claimant and his colleagues. Submissions were received from the entire CI Operations team, save for the Claimant's. Due to the urgency of the matter, the Claimant's supervisor tried to reach him through WhatsApp but came to discover that the Claimant could not be reached. The Claimant's supervisor resorted to contacting the Claimant through the SSA CI Operations Group Chat to ask for the update. No sooner had the request been made than the Claimant exited the said group chat.
7. The Respondent averred that with a view to understanding the circumstances, it subsequently scheduled a call with the Claimant on 19^th May 2021 for the Claimant to provide reasons why his goals were yet to be submitted. The Claimant stated that he would not update his goals as he felt that he was not rewarded based on the effort he had put to achieving his goals within the year. Following discussions with the CI Operations Lead- Maghreb and SSA Region, the Claimant eventually submitted his goals on 20^th May 2021, 2 days after the deadline.
8. The Respondent averred that in view of the Claimant's aforesaid conduct, the Respondent sought to hold a meeting with him to understand challenges he might have been facing so as to provide him with the necessary support to aid in the timely setting of goals. The meeting invite was sent on 19^th May 2021 but was subsequently revised by another invite sent on 21^st May 2021, requiring the Claimant to attend a meeting with the Managing Director and Human Resources on 25th May 2021. The Claimant accepted the invitation. However, on the day of the meeting, the Claimant failed, neglected and/ or refused to attend without providing any reasons beforehand. The meeting was called to a close after 30 minutes on account of the Claimant's non-attendance.
9. The Respondent averred that it was compelled in the circumstances to commence disciplinary action against the Claimant. It proceeded to issue the Claimant with a Notice of a Show Cause hearing, setting out the allegations of insubordination and misconduct in detail and requiring him to attend a disciplinary meeting on 17th June 2021. The Claimant was also informed of his right to bring his chosen representatives and witnesses to the said meeting.
10. The Respondent averred that the disciplinary hearing took place on the scheduled date vide an online platform. The Claimant confirmed that he had been given 48 hours to prepare for the hearing and that he waived his right to representatives and/ or witnesses. The allegations levelled against the Claimant were explained and he was given an opportunity to respond to them.
11. The Respondent averred that it took some time to consider the Claimant's representations and delivered its final decision on 21^st June 2021. It was observed that the Claimant's failure to follow instructions from his supervisor, his failure to respond to his supervisor's emails and the steps taken to cut off communication with his supervisor and the team amounted to direct insubordination. Further, his deliberate failure to attend the meeting of 25th May 2021, despite having confirmed his attendance and the lack of justifiable reasons tendered, amounted to gross misconduct. The Claimant's dismissal was thus recommended culminating in the issuance of a termination letter on 1^st July 2021.
12. The Respondent averred that the Claimant was notified vide the termination letter that his last working day would be 2^nd July 2021 and that he would receive his terminal dues and Certificate of Service upon handing over all the Respondent's assets in his possession. Despite reasonable efforts made to effect the clearance process to retrieve the Respondent's assets in the Claimant's possession, and in particular, a laptop that had been issued to him by the Respondent for work purposes, the Claimant has failed, neglected and/ or refused to take part in the process. The Claimant's continued possession of the Respondent's laptop amounts to a breach of his contract and is illegal.
13. The Respondent averred that the termination of the Claimant's employment was warranted and that it was not premature, unlawful and/ or unfair as alleged or at all. The Claimant was given an opportunity to adequately defend himself but failed to provide any, justifiable reasons for his actions. The Claimant duly acknowledged his acts of insubordination and misconduct but remained unremorseful. The Respondent was left with no recourse in the circumstances but to effect the termination.
14. The Respondent averred that the disciplinary process was not a sham and the allegations of discrimination and unfair termination as alleged or at all were denied.
15. The Respondent averred that the Claimant is not entitled to the prayers sought in the Claim.
The Respondent raised its counterclaim with regard to the Laptop issued to the Claimant in the course of his employment. That the laptop contained confidential information which should not be in the Claimant’s possession after he left the Respondent employment. That the sum of Kshs 157,000/= which was the value of the Laptop be subtracted from the Claimant’s terminal dues.
The Respondent in the upshot prayed for the following against the Claimant:

a) A declaration that Claimant had breached the terms of his employment contract by failing to return the Respondent's laptop.

b) A mandatory injunction compelling the Claimant to return the Respondent's laptop in good working condition.

c) In the alternative to prayer (b), the value of the Respondent's laptop be deducted from the Claimant's terminal dues.

d) A permanent injunction restraining the Claimant from accessing any documentation, correspondence or communication obtained in the course of his employment with the Respondent.

e) An undertaking from the Claimant that he has not accessed and/or utilized the information contained in the laptop in any manner whatsoever following the termination of his employment and that he will protect the Respondent's proprietary information and will not disclose or share the same with any third parties or at all.

f) Costs of the suit.

The Claimant filed its reply to the memorandum of defence and counterclaim and prayed the Respondent’s counterclaim be dismissed with costs.

EVIDENCE

Both the Claimant’s case and the Respondent’s case was heard on 26^th July, 2023. CW 1 the Claimant herein adopted his statement and documents filed as his evidence in chief and testified that he received a termination letter on 1^st July, 2019 and that he received a show cause letter as well as being called for disciplinary hearing but he was not satisfied with it.
CW 1 testified that the show cause letter and disciplinary hearing was online and he responded to the show cause letter via an email. He testified that there was a meeting set up by the MD where she wanted updates from him but he had challenges because there was black out. That he looked for an alternative and on re-joining the meeting the MD was on another meeting.
CW1 stated that he received a show cause letter while the second issue was not making entries in the system for yearly objectives as per the termination letter. He testified that he made the entries and the person making the claim had no access to the system.
CW1 testified that he was not given any verbal or written warning prior to the show cause letter. That he was not given a notice of termination. He sought to be compensated as per his claim.
On cross examination CW1 testified that he had asked for Kshs 180,000/ but he was offered Kshs 130,000/= which he accepted. He confirmed having submitted his goals and objectives on 30^th April, 2021. He confirmed that he had challenges attending the meeting of 25^th May, 2021 due to power blackout the whole day.
CW1 confirmed that he expected his laptop to have enough power and that he made reference to the laptop not phone. He confirmed that there was no agreement on rescheduled meeting and the screenshots did not show any date.
CW1 confirmed that the allegations at the show cause letter were failure to submit goals and failure to attend meeting. That he was given 48 hours to prepare for the hearing.
CW1 confirmed that the termination letter set out his dues which he challenged and he was told to clear. That he returned the Respondent’s laptop but he could not remember the exact date. It was early February of 2022. That he left it at the reception and he could not remember the person he left it with. He confirmed never responding to the counterclaim. That he never responded to the allegations of never returning the laptop.
In re-examination CW 1 clarified that he asked for more pay because he had worked in entry position for one year. That his colleagues holding his position were summarily dismissed and he acted on promise he would get increment. That he had been promoted on several occasions over the 8 years he was there.
CW1 clarified that he did not have previous warning or disciplinary issues. That he could not access work email after termination. He clarified having submitted his goals and objectives whenever needed. He clarified returning his laptop in February 2022 after colleagues called him telling him his laptop was needed. That he did not receive his terminal dues. That only his line manager had access to the portal. That he tried to update his manager on his challenges.
The Respondent on the other hand called its witness the Consumer Insights lead RW1 who testified and adopted his statement and the Respondent’s documents filed in court as his evidence in chief.
RW1 testified having been brought in 2020 following complaints over respondent’s services. That he worked closely with the Claimant to build customer confidence and was supervising the Claimant. He testified on importance of goals and objectives submissions to the Respondent as what affects the award of merit increment to the staff. That failure to submit the same means the staff would not participate in the business growth.
RW1 testified that the Claimant never explained why he submitted his goals and objectives late. That the Claimant was given 48 hours to prepare and call witness. That he was at the meeting and the Claimant never called any witness. That when the Claimant was questioned about the submission of the goals and objectives he said he assumed he had them but did not produce any communication via email on the same as he could not see his communication on his portal.
RW1 testified that he dropped the message on the WhatsApp group as he believed the Claimant had blocked him. That the Claimant edited the WhatsApp group. That the Claimant’s gadgets were on except his laptop. That the said Faith was not contacted by the Claimant about the power challenge. That they may have to ask which receptionist received the Claimant’s Laptop he claims to have returned at the Reception.
On cross examination RW 1 confirmed that he did not work for HR as Respondent has HR department. That he was the assigned supervisor. He confirmed that the Claimant did not hold more than one role as the previous role was abolished. Further that the Claimant was a project Manager based in Kenya. It was his evidence that he had no access to the claimant’s portal and if he updated his profile he could have dropped an email on the same. That his email were ignored by the Claimant.
RW 1 confirmed that the Claimant sent an email on 5/5/2021 when the goals and objectives were to be sent by 30/4/2021 after several reminders. That he redid his profile and asked the other employees to rework on theirs and they were sent around 12^th May, 2021. RW1 confirmed that power black outs were normal occurrence and further that Faith was the Managing Director.
RW1 confirmed attending the disciplinary hearing which was done online and that there were minutes for the meeting which the Claimant did not sign and he refused to acknowledge them even though he had issues with them. That the Claimant did not sign clearance certificate for his dues to be paid and that he had not cleared with the Respondent.
RW1 confirmed that the Claimant left the WhatsApp group after he messaged him in the group and he failed to respond to his direct WhatsApp messages.
In Reexamination RW1 clarified that the Claimant ignored instructions to submit his goals and objectives and his reporting supervisor would see if he had updated the same. That the request was done on 18^th May, 2021 and the Claimant did not submit it in time and on the rework as well. That he submitted on 20/5/2021. RW1 clarified that the Claimant never raised the issue with minutes after he was told to recheck with the recording.

CLAIMANTS’ WRITTEN SUBMISSIONS

The Claimant filed written submissions dated 16^th August, 2023. On the issue of whether he was unlawfully terminated by the Respondent he submitted that as a permanent and pensionable employee of the Respondent the dismissal without strict compliance with law amounted to unlawful and unfair termination which was a breach of Sections 40, 43(1) and 54(2) (a) (b) and (c) of the Employment Act.
The Claimant submitted that on the grounds of insubordination, there was biasness in the hearing and determination of the disciplinary hearing while noting that the Claimant submitted the goals as instructed on 30^th April 2021 which were detailed and achievable.
The Claimant submitted that on the grounds of misconduct it was his failure to attend the meeting set up to which he reached out to the Managing Director, Ms. Faith Wanderi, in a bid to reschedule the meeting on 25^th May 2021, after having blackouts during the meeting’s schedule time. The Claimant submitted that the Respondent did not consider his genuine explanations but instead went ahead and conducted a sham disciplinary hearing process which resulted in the unlawful and unfair decision.
The Claimant relied on Section 45(2) of the Employment Act on unfair termination for failure of a valid and fair reason. He further relied on the case of Mary Njoki Karingithi vs Emerald Hotels Resorts & Lodges Limited and submitted that Section 45 of the Employment Act envisages the fact that an employee has a right not to be unfairly terminated. The Claimant also relied on the cases of Kenfreight (E.A) Limited vs Benson K. Nguti and Joseph Mwaniki Nganga vs United Millers Limited on observance of section 41 of the Employment Act on procedure.
The Claimant submitted that the Respondent violated the Claimant’s rights to fair trial, presumption of innocence and never gave him adequate time to prepare his defense and further that he was never accorded the right to be heard by an impartial disciplinary committee, due process of the law and right to inherent dignity. The Claimant in this respect relied on the case of Judicial Service Commission vs Gladys Boss Shollei & Another on the issue of impartiality of the committee as well as due process.
In conclusion the Claimant submitted that his the termination process did not follow the due process, was unfair, unlawful and irregular.

CLAIMANT’S FURTHER SUBMISSIONS

The Claimant filed further written submissions dated 2nd November 2023. On the issue of whether valid reasons were provided and due process adhered to during termination by the Respondent, the Claimant submitted that the employer is obligated to satisfy the court not only that they had a good reason for the termination of employment, but also that the reason for the termination was one which was justified while relying on the case of County Government of Garissa & another versus Idriss Aden Mukhtar & 2 Others.
The Claimant submitted that the employer had to satisfy the court that due process was followed and fair hearing given to the employee.
On valid reasons, the Claimant submitted that the Notice to Show cause letter dated 26^th March 2021 stated that the Claimant had been cited for misconduct and insubordination. The Respondent on the other hand produced a different Notice to Show Cause letter that was not dated, citing the Claimant for breach of Nielsen policies including data integrity and quality, inability to follow standard operating procedures (SOPs) and insubordination.
The Claimant submitted that the Respondent alleged that the Claimant failed to follow instructions from his supervisor , failed to respond to his superior’s emails, and took steps to cut off communication with the supervisor and the team, which mounted to insubordination.
The Claimant submitted that clause 2.2 of the contract of employment dated 7^th July 2014 stated that the Claimant was to be responsible and answerable to the DA, CI, NIP, QC and Training Leader (SA & SSA) or any other person appointed by the company.
The Claimant submitted that Mr. Gregory Nzuk was not mapped as the Claimant’s manager. On 29^th April 2021, he sent an email to the Claimant with instructions to upload goals in the MyCareer Portal to which he diligently prepared to what was achievable and applicable and uploaded as requested.
The Claimant submitted that on 30^th April 2021 Mr Gregory Nzuk issued further instructions to be informed when the said goals were uploaded to the MyCareer Portal. The Claimant was not among the recipients of the said email.
The Claimant submitted that an email was sent on 18^th May 2021 followed by instructions to update the uploaded goals using the words “some of us” which instructions were therefore not generalized at all. As a result the Claimant saw no need to update his goals which were already applicable and achievable from his end.
The Claimant submitted that the call made by Shameemah Basadien on 19^th May 2021 was when he was informed of his need to also update his goals by the 20^th of May 2021 which he did. The Claimant submitted that the accusation stated in the termination letter that the Claimant failed to submit goals as instructed by his Manager, hence termination was malicious.
The Claimant relied on the case of Olute v County Government of Siaya & another in submitting that employers have a duty to uphold and protect the employment right of their employees and not infringe them.
The Claimant submitted on the allegation of intentionally cutting off communication with the supervisor and the team that it was a personal choice on whether to have a direct link on WhatsApp.
The Claimant submitted on failure to attend meeting as requested that he took steps to reschedule the meeting on the same day at 11:03 pm minutes after the intended meeting and gave sufficient reasons vide an email sent on 26^th May 2021 of his non-attendance.
On due process, the Claimant submitted that employers must uphold due process in a fair procedure in terminating employment while relying on the case of Kenya Plantation & Agricultural Workers’ Union-vs- Roseto Flowers.
The Claimant submitted that due process was never followed. The notice to show cause neither informed him of his right to representation nor to defend himself. He did not sign the disciplinary hearing as he was not in agreement with the content.
The Claimant submitted that Gregory Nzuk informed the Claimant that the disciplinary hearing minutes were neither a subpoena record nor a court ruling but the same was used in termination of his employment. The Claimant relied on the case of Bernard Ongeta Mbura v Simba Apparels (EPZ) limited; Tailors and Textile Union (interested party) while submitting that Section 44 (6) of the Employment Act provides an elaborate due process to be followed in case of termination.
The Claimant submitted that termination contravenes articles 27, 47 and 50 of the Constitution of Kenya 2010.
The Claimant relied on the case of Julius Kipchirchir Rotich v County Government of Uasin Gishu while submitting that evidence before the Disciplinary Committee did not constitute valid and fair reasons for summarily dismissing the employee.
The Claimant submitted with regards to the Respondent’s counterclaim that the said laptop was returned in February 2022 to the Respondent.

RESPONDENTS’ WRITTEN SUBMISSIONS

On the other hand, the Respondent filed its submissions dated 20^th October 2023 and on the issue of whether the Respondent had valid reasons to warrant the Claimant's summary dismissal submitted that the Respondent had, on a preponderance of probability, sufficient reason to believe that the accusations levelled against the Claimant were true.
It was the Respondents’ submissions that the Claimant’s employment contract was terminated on 1^st July 2021 for insubordination and misconduct.
The Respondent submitted that the Claimant was at all material times aware of the goal submission process and the submission timelines but he chose not to take part in the process as instructed in the year 2021 as he was dissatisfied with his merit increment he received. The Respondent demonstrated different incidences of insubordination from the email trail with the Claimant finally updating his goals, 2 days after the deadline and no reasons provided for his late submission of goals.
The Respondent submitted that RW1 stated that he tried to reach the Claimant due to the urgency of the matter. He sent a message via WhatsApp only to realize that he had been blocked by the Claimant. RW1 thereafter resorted to contacting the Claimant through the SSA CI Operations Group Chat to ask for the update. No sooner had the request been made than the Claimant exited the said group chat. RW1 also testified that he called the Claimant seeking to understand why he had not submitted his updated goals. The Claimant stated that he would not update his goals as he felt that he was not rewarded based on the effort he had put to achieving his goals within the year.
The Respondent submitted that the Claimant confirmed in his cross-examination that he did not have any evidence on record demonstrating that he submitted his goals on time as requested. The evidence on record demonstrated clear insubordination, warranting the action subsequently taken by the Respondent.
On misconduct the Respondent submitted that in view of the Claimant's conduct, the Respondent sought to hold a meeting with him to understand challenges he might have been facing so as to provide him with the necessary support to aid in the timely setting of goals scheduled 25^th May 2021 with the Managing Director and Human Resource which invitation he accepted.
The Respondent submitted that the Claimant failed to attend the meeting as scheduled without providing any reasons beforehand. The meeting was called to a close after 30 minutes on account of the Claimant's nonattendance.
The Respondent submitted that in his evidence, the Claimant stated that he could not attend the meeting as all his electronic gadgets had no power but on cross-examination he testified that his mobile phone was charged but he did not use it for the meeting as it was a personal phone and not a work-assigned device.
The Respondent submitted that it was only upon being issued with the Notice to Show Cause Letter on 26th May 2021 that the Claimant sought to reschedule the meeting with the Respondent's Managing Director and Human Resources on 27^th May 2021.
The Respondent respectfully submitted that the Claimant's conduct warranted the termination of his employment contract as the Respondent had lost trust in the Claimant's ability to discharge his duties.
The Respondent submitted that it had proved that the reasons for the termination of the Claimant's contract were reasonable, valid, fair and justified while relying on Section 43 (2) of the Employment Act which provided that the reasons for termination are the matters that the employer at the time of termination genuinely believed to exist and which caused the employer to terminate the employment contract. The Respondent relied on the case of Nazareno Kariuki vs Feed the Children Kenya [2013] eKLR while submitting on the test for adjudicating the reasonableness of an employer's decision.
On the issue of whether the Respondent followed due process in effecting the summary dismissal, Respondent submitted that the Claimant's termination was procedurally fair within the meaning of Section 41 of the Act and that due process was followed before a decision was made to terminate her employment.
The Respondents relied on the case of Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd [2013] eKLR in submitting the elements of procedural fairness.
The Respondent submitted that the Claimant was ; notified of the allegations leveled against him with specificity in the Show Cause Letter and in the Notice to Show Cause Hearing/ Hearing Invite Letter, given sufficient time to prepare for the disciplinary hearing and that he was also informed of his right to bring representatives and witnesses to the hearing.
The Respondent submitted that during the hearing, the Claimant admitted to not responding to RWl's emails because he believed updating goals on the portal was sufficient and did not explain why he ignored his supervisor's instructions on confirmation emails, even though his team followed them.
The Respondent submitted that no evidence was led by the Claimant to demonstrate that the process was predetermined or a sham.
On the issue of whether the Claimant was entitled to the orders sought the Respondent submitted that the Claimant was not entitled to the reliefs sought as the Claimant was notified that he would receive his notice pay, accrued leave pay, pro-rated salary for July 2021 and Certificate of Service upon clearance.
The Respondent submitted that the Claimant did not have 18 outstanding leave days as alleged or at all and the Claimant was not entitled to a declaration that his contract was unfairly terminated and/ or any compensation as the termination was justified in the circumstances and carried out in accordance with the applicable provisions of the Employment Act. The Respondent further submitted that the Claimant was not entitled to service pay.
The Respondent submitted that the Claimant did not demonstrate any reasons whatsoever to justify his claim for legitimate expectation.
The Respondent submitted that the Respondent was at all times fair in its dealings with the Claimant and did not discriminate him.
The Respondent submitted that the Claimant was not entitled to an award of general damages as capped by Section 49 (1) (c) of the Employment Act. The Respondent relied on the case of Abraham Gumba vs Kenya Medical Supplies Authority [2014] eKLR on the employment relationship which is not profit making one.
On the issue of whether the Respondent was entitled to its Counterclaim, the Respondent submitted that it issued the Claimant a Dell Laptop, Serial No. GKDXPQ2, to enable him discharge his duties. The Respondent submitted that following the termination of the Claimant's employment contract on 1^st July 2021, the Claimant refused to return the said laptop to facilitate the clearance process.
The Respondent submitted that the Claimant's continued retention of the laptop after the termination of employment relationship was a clear violation of the terms of his contract and a violation of the Respondent's right to property and to protection of its proprietary and confidential information
The Respondent submitted that it had been unable to remotely shut access to the information in the laptop and it was reasonably apprehensive that the Claimant would use the information procured from the laptop to the detriment of the Respondent's business operations.
The Respondent submitted that it was only just and equitable in the circumstances that the said laptop was returned or the value of the laptop reimbursed and orders issued to prevent the Claimant from using any information obtained therefrom.
In conclusion, the Respondent submitted that the Claimant's termination for insubordination and misconduct was justified.

DETERMINATION

I have reviewed and considered the pleadings and testimonies by both parties.
I have I have come up with three main issues;
- 1. Aa. aa.Whether the Claimant’s termination of employment was unfair and unlawful
  2. WHEHWWwWhetherWhetherWheWhether the Claimant is entitled to the reliefs sought.
  3. Whether tneWhether the Respondent is entitled to its counterclaim

WhethrWWhwr Whether the Claimant’s termination of employment was unfair and unlawful

In this instant case, the Respondent alleged that they terminated the Claimant on grounds of insubordination and gross misconduct. The Claimant on the other hand alleges to have been terminated unfairly.
I have perused the termination letter of 1^st July,2021 where the Respondent terminated the services of the Claimant with effect from 2^nd July,2021. The termination letter did specify the reasons for the termination as insubordination by failure to submit goals as requested and misconduct by failure to attend meeting as requested by the MD.
On the issue of insubordination I have perused the email exchanged and it is clear the Claimant did not submit the goals within the requested timelines. The Claimant during hearing confirmed that he did not have evidence that he submitted the goals on 30^th April, 2021 as requested. The Claimant having worked with the Respondent for 8 years he was presumed to know how the Respondent operated when it came to the submission of the goals. He chose to assume things instead of following direct instructions.
On the issue of misconduct by failing to attend the meeting with MD the Claimant stated that there was blackout even though his other devices were on he could not attend the meeting. That he thought the laptop had enough power and he could not use his private phone.
That being the case there was no evidence tendered by the Claimant showing the communication to the MD on the challenges he had. The only communication which is seen is on 27^th May, 2021 after he received show cause letter on the same date of the meeting of 25^th May, 2021. In the email the Claimant was requesting for the rescheduling of the meeting. The Court considers this as an afterthought after being issued with show cause letter.
The court agrees with the Respondent that if the claimant was aggrieved when his request for a higher pay was not addressed he ought to have followed the right channels instead of acting rebellious.
It was not in dispute that the Claimant did not have previous disciplinary cases and he was promoted severally due to his performance and issues started when he requested for a higher pay of Kshs 180,000/=instead of Kshs 130,000/= . The claimant accepted the lower pay by signing for it. He was not on record having objected.
In conclusion the Court is of the view that the reasons for the termination of Claimant’s employment were fair and valid as provided for under the Employment Act section 43.
Regarding procedural fairness courts have repeatedly emphasized on both substantial and procedural fairness in a number of cases including in the case of Walter Ogal Anuro -vs- Teachers Service Commission (2013) eKLR among others that for termination to pass the fairness test, it must be shown that there was not only substantive reasons for termination but the termination ought to be procedural as well.
Further Section 41 of the Employment Act sets out the mandatory procedure to be followed before termination and provides that the employee ought to be explained to, the reason for termination in language he/she understands and consider the representations by such an employee who should have on the accusations. This was observed in Kenya Union Of Commercial Food And Allied Workers v Meru North Farmers Sacco Limited [2014] eKLR that: -

Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing in the presence of their union representative.

The Respondent gave the Claimant a show cause letter dated 25^th May, 2021. The Claimant responded to the same. The Respondent invited the Claimant for disciplinary hearing on 17^th June,2021 where the Claimant was given 48 hours to prepare.
I have perused the Show cause hearing notice and the Respondent did not inform the Claimant to attend the hearing with a fellow employee or notify labour officers. I am of the view that 48 hours timelines was too short to prepare for the hearing and no wonder the Claimant did not attend with any witness.
In Kiilu v Isinya Resorts Limited (Cause E022 of 2021) [2022] KEELRC 13240 (KLR) it was held that;

An employee is entitled to be given adequate notice to respond to a show cause letter and adequate notice to attend a disciplinary hearing/meeting.

Whereas the Respondent has produced minutes to this court which the Claimant refused to sign saying he had issues with them the Respondent did not give him room to appeal the same decision.
On the burden of proving and justifying the grounds of dismissal/termination of employment, Section 47(5) of the Employment Act puts the same to the employer.
The Respondent proceeded to terminate the services of the Claimant on 1^st July, 2021 with effect on 2^nd July, 2021 without any notice or payment in lieu of notice against their own contract.
In conclusion I am of the view that the Claimant’s termination was procedurally flawed hence the Claimant was unfairly terminated.

Whether the Claimant is entitled to reliefs sought.

Whereas the Respondent offered the Claimant his terminal dues in the termination letter I note that he offered him one month notice pay. I note that the employment contract provided for two months’ notice or payment in lieu of notice under clause 8.6 of the Agreement. Parties are bound by their agreement. The Respondent terminated the services of the Claimant on 1^st July,2021 with effect on 2^nd July,2021 which meant there was no notice of the said termination hence the Claimant was entitled to notice pay of two months.
On the prayer for 12 months compensation for unfair termination having found that the reasons for the termination were justified yet the Respondent did not follow the proper process for termination with no notice for the said termination I award the Claimant 3 months’ salary as compensation for unfair termination.
On the prayer for 18 unpaid leave days the Claimant did not produce any leave application forms. I appreciate that the same are employment records which the Respondent ought to produce to challenge the days since it offered the Claimant 7.5 unpaid leave days in the termination letter, it ought to have produced evidence to refute the claimant’s claim for unpaid leave days. The Claimant’s assertions were not refuted by the Respondent and I award him the 10.5 days unpaid leave being the balance of the 7.5 days already offered.
On the prayer for service charge I note that the contract provided for statutory deductions which included NSSF. The Respondent has attached June 2021 pay slip which showed statutory deductions were made. The Claimant has not attached his NSSF statements to show if the same were never remitted. In the circumstances I decline to award the same since he was a member of NSSF which is an exception under section 35(6) of the Employment Act.
On the prayer for legitimate expectation, discrimination and general damages for unfair termination I note that this is an employment contract which could have been to be terminated by various factors including death, termination and resignation among others. It is not a lifetime affair. The claim for legitimate expectation is therefore rejected.
On the prayer for certificate of service I note the same was ready as the Respondent attached it on its list of documents. The Claimant is entitled to the same and should collect it.

Whether the Respondent is entitled to its counterclaim

The Respondent sought to have the Laptop he had given the Claimant to be returned to safeguard its information in the Laptop. In the Alternative the Respondent sought the value of the Laptop of Kshs 157,000/= to be subtracted from the Claimant’s final dues.
The Claimant maintained that he returned the Laptop in February 2022 at the Respondent’s reception but could not remember who he left it with. It is important to note that the Claimant was supposed to clear with the Respondent to get his dues but chose to return the laptop alone. The onus was on the claimant to prove he returned the laptop since it had become a bone of contention between the claimant and the respondent. He could not just drop the same at the respondent’s reception to a person he could not remember.
The respondent informed the Court that it would check with the reception to find out if indeed the laptop was returned. The Court will therefore disallow the counterclaim for the value of the laptop. In any event, the respondent did not produce any evidence to support the value assigned to the laptop to entitled the award of the counterclaim. The claimants terminal dues will however be payable subject to clearing with the respondent as required in the termination letter. This includes proof that the laptop in issue was indeed returned. For avoidance of doubt, the compensation for unfair termination is not subject to this requirement.
In conclusion the Claimant’s claim is hereby allowed while Respondent’s counterclaim is dismissed, as follows;
- 1. Two Months salary in lieu of Notice…………………………………..Kshs 260,000/=
  2. 3 Months compensation for unfair termination ………………………….Kshs 390,000/=
  3. Unpaid leave for 10.5 days…Kshs 45,166/50
  4. Total …………………………………..695,166/50
  5. Costs of the suit.

This award shall be in addition to terminal dues offered to the claimant in his termination letter dated 2^nd July, 2021. It shall be subject to statutory deductions but shall attract interest from the date of judgment until payment in full.

It is so ordered.

Dated this …………………………of April, 2024

Delivered this ……………………….. day of April, 2024

Abuodha Nelson Jorum

Judge