REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
CAUSE NO.E005 OF 2024
JOSHUA ODALO ……………………………………………………..……. CLAIMANT
VERSUS
TECHNICAL UNIVERSITY OF MOMBASA ………………….……. RESPONDENT
JUDGMENT
The claimant is a male adult. The respondent is a public university and registered under an Act of Parliament.
The claimant was employed by the respondent as a senior mechanic earning a salary of ksh.94, 000 per month. He had the benefits of a leave allowance of Ksh.12, 000, and medical cover of Ksh.400, 000 in-patient and Ksh.80, 000 out-patient.
The claim is that the respondent wrongfully accused the claimant of theft of 3 tyres belonging to the respondent through a letter dated 28 January 2021 when he was interdicted. There was no evidence to support such an accusation. The claimant responded through a letter dated 23 February and 4 May 2021 and explained that he acted reasonably since the bus driver had abandoned the bus. He remained at the instructions of the transport manager. The findings by the disciplinary committee on 26 March 2021 were to the effect that he be surcharged but the minutes were doctored and the verdict was substituted with summary dismissal.
The claim is that there was wrongful and unfair termination of employment and the claimant is seeking the following dues;
- 2 months’ notice pay Ksh.191,136;
- 12 months compensation for unfair termination of employment Ksh.1,146,816;
- Years worked Ksh.573,408;
- Leave allowance Ksh.12,000;
- Damages for rendering the claimant unemployable;
- Costs of the suit.
The claimant testified in support of the claim that the respondent accused him of theft of 3 tyres. There was no evidence to support such allegations. The claimant responded and explained that he had acted reasonably.
The claimant testified that on 18 December 2020, together with his team of mechanics and a driver, Joseph Ziro, Emannuel Mwabonje and Japhet Mwadilo went for the overhaul of motor vehicle registration KAY 666V. The transport manager, Stanley Omwenga proposed a road test. One mechanic, Mwabonje left and the claimant did the road test with Mwadilo and Ziro who also left. They took the motor vehicle for loading of new tyres and fitting. They got the new tyres from the transport office and got 6 new tyres in the motor vehicles together with Duncan and Nzaka. Mwadilo left to attend to personal matters and could not attend to the tyres changing at the petrol station and through mutual agreement, it was agreed with the transport manager that he should wait until the tyres were fixed.
The claimant testified that the technician could not finish the task and there was damage to the vehicle and directed the claimant to go to Kingsway’s motors. He asked the transport manager to give the permission and he went for the removal of the tyres and fittings. The transport manager came and paid for the service but upon returning to the petrol station where the rest of the tyres were left, the technician had left. It was agreed that since this was on a Friday evening, the work could continue on Monday 21st December 2020 the tyres were secured in storage at the petrol station and they drove back to the respondent’s premises.
The claimant testified that the security team at the gate inspected the vehicle on his way back and found the tyres missing. The security team consulted with the transport manager about the missing new tyres who explained the entire process for the day but the security team called the Vice-chancellor about the matter who directed the claimant to return all 4 tyres he had been issued from the office. This was around 8.30 pm and the petrol station was closed.
The next day the tyres were returned and a total of 6 new tyres were fully accounted for but he was interdicted and directed to attend the disciplinary hearing. The panel recommended a warning but this was changed to summary dismissal. This was unfair and not justified since he had no criminal case of theft to support the allegations made by the respondent. There was no loss to the respondent and the summary dismissal was not justified and the claims made should be awarded as pleaded.
In response, the respondent admitted that the claimant was an employee and terminated the claimant in his employment fairly and applied due process. In this case, the respondent’s security team submitted a comprehensive report dated 12 February 2021 concerning an incident of theft relating to the claimant who had been issued with tyres to fit into motor vehicle KAY 666V.
The claimant was issued with a show cause notice dated 16 February 2021 on the allegations made against him based on the report of the investigation. On 23 February 2021, the claimant replied to the notice and through a letter dated 19 March 2021 the respondent informed the claimant that his response was unsatisfactory. He was invited to attend a disciplinary hearing on 25 March 2021 and on 20 April 2021, the claimant was informed of the decision to terminate his employment for gross misconduct. He was allowed a right of appeal which he did through a letter dated 4 May 2021, he was invited for a hearing on 21st May 2021 but the verdict was to dismiss the appeal. The claimant cleared on 13 July 2021 and was paid all his dues.
The response is that the respondent had reasonable and substantive grounds leading to termination of employment. The claimant was found to be dishonest and continued to portray the transport manager in a bad light about the case of theft. The claims made are without merit and should be dismissed with costs.
No witness was called. The respondent remained absent at the hearing.
At the close of the hearing, parties were directed to file written submissions.
No submissions are filed.
Determination.
Through a letter dated 20 April 2021, the respondent dismissed the claimant from his employment on the grounds that;
The Committee, having considered your representations, the investigation report, witness statements, and the hearing proceedings deliberated and found you guilty in that;
- You took over the driving of the bus that day 18.12.2021 for the tyre change operation and you signed for 6 new tyres (even without following the University procedures of signing the work ticket);
- After finishing your business for the day, you left the 4 tyres in an unknown place outside the University without any record as to where and with who the tyres were left;
- You refused to explain how and where you changed the two front tyres of the bus;
- You refused to reveal where the tyres were picked on Saturday 19th before delivering them to the University; and
- Hence you planned and executed the theft of the tyres of the bus.
In court, the claimant explained that he took over the driving of the bus because the driver assigned to it Mwadilo had abandoned it to run personal errands and as a responsible person, he took over to secure the bus and drive it to the University premises. He was not required to sign the bus ticket as the transport manager was aware of the matter.
The claimant also testified that the respondent and other officers were protecting Mwadilo from blame and he became the culprit. He had communicated the issue of the 4 tyres left at the fuel station to the transport manager and he submitted a receipt from Kingsway’s Motors to prove that he had to run all these activities to have the new tyres fitted but he ran out of time. The accusation that he left the tyres in an unknown place was not correct since the transport manager was aware that they had been stored at the petrol station.
An employer is allowed to terminate the employment of an employee for gross misconduct where the employee is found to have engaged in theft or other criminal conduct. Section 44(4) (g) of the Employment Act, 2007 (the Act). The safeguards for the employee are that he must be taken through the motions of Section 41(2) of the Act as held in Janet Nyandiko v Kenya Commercial Bank Ltd [2017] eKLR and Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, that the employer must explain to the employee the reason upon which termination is being considered and then accord him an opportunity to defend himself.
In the case of Matsesho v Newton (Cause 9 of 2019) [2022] KEELRC the court in addressing the motions of Section 44(4) (g) of the Act held that the fact that there were no criminal charges convicting the claimant from his acts of theft, this did not mean that the Respondent could not validly terminate the employee’s employment under section 44 of the Employment Act.
All that section 44(4) (g) of the Act requires for an employer to terminate employment is that there a reasonable and sufficient grounds to suspect that the employee has been involved in a criminal act which is injurious to the person or property of the employer. The Court of Appeal in the case of Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR the court held that;
Under Section 43 of the Act, the onus is on an employer to prove the reason or reasons for the termination, failing which the termination shall be deemed to be unfair. The test is, however, a partly subjective one in that all an employer is required to prove are the reasons that he “genuinely believed to exist,” causing him to terminate the employee’s services. In the present case, it seems quite clear from the evidence on record that KPLC believed, and had ample and reasonable basis for so believing, that Wasike had attempted to steal cable wire from KPLC stores which he was in charge of. That being the case, we think the learned Judge plainly erred in entering into a detailed examination of whether or not the 300 metres of cable wire were part of the 1,100 metres that were being legitimately removed from the store, as well as an examination of whether or not there was sufficient documentation in proof of the discrepancy and the like. It was enough, we think, that the gateman found cables that were concealed and should not have been getting out of the stores.
In the case of Teachers Service Commission v Timothy Onyango Olale [2022] eKLR the court held that while the burden is on the employer to prove the reasons for termination, the test is subjective in that all the employer is required to prove the reasons he genuinely believed caused him to terminate the employee’s services.
In this case, the claimant does not deny that he drove motor vehicle KAY 666V after the driver abandoned him. He however did so without the authority of the employer. He also left 4 tyres, the property of the respondent and his employer with a third party in circumstances that the employer was not aware of. Section 43(2) of the Act provides that;
(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.
The Court of Appeal in Postal Corporation of Kenya v Andrew K. Tanui (2019) eKLR outlined the requirements to be addressed once the employer finds the employee to have committed an act of gross misconduct. These include giving the employee reason(s) for which termination of employment was being considered, an explanation of the grounds of termination in a language understood by the employee and in the presence of a colleague of his or her choice or a shop floor representative, hearing and considering the representations made by the employee or his or her colleague or representative. See Aseka v South African Airways (Proprietary) Ltd (Cause 2149 of 2017) [2024] KEELRC
Indeed the claimant was brought to task by the security officers at the University gate when he tried to drive the bus past on the material day. He was required to account for the missing tyres. In his words, he testified that he was kept waiting at the gate for very long. The security team searched the bus but could not trace the missing tyres. It took the intervention of the Vice-chancellor for the claimant to reveal where the tyres were. The following day, he accounted for the missing tyres, but as the notice terminating employment stated, the respondent had lost trust in him.
In this case, the respondent fully complied with sections 41, 43 and 45 of the Act. These provisions are not just concerned with the presence of valid reasons or grounds for termination. They also require the employer to observe due process in addressing a case of alleged gross misconduct such as theft.
In this case, the claimant was suspended and issued a show cause notice with an outline of the accusations made against him. He was allowed a chance to respond to the allegations which he did at length. He was invited to a disciplinary hearing in the presence of another employee of his choice. Upon the disciplinary hearing, notice of summary dismissal was issued and the claimant was allowed to appeal which he did and was invited to the appeal hearing. His explanations were found unsatisfactory.
The court finds there were justified grounds leading to termination of employment and the due process was followed. Notice pay and compensation are not due.
Despite the respondent not calling any witness, on the evidence before the court, the motions of the law applied, termination of employment was for valid reasons.
The claimant is seeking payment of Ksh.573, 408 for years worked. He did not explain how this arose. It is not submitted how such amounts accrued at the end of employment.
On the claim for leave allowance Ksh.12, 000, the claimant has since been cleared and paid his terminal dues in full.
On the claim for costs, the claims are found without merit. The respondent did not attend at the hearing and no costs shall be awarded.
The claim is dismissed. No orders on costs. Without merit and
Delivered in open court at Mombasa this 4th day of July 2024.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet Muthaine
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