1. The Claimant through a Memorandum of Claim dated 5th October, 2022 and pleaded inter alia: -
a. The issue in dispute arose on 16th December, 2021 when the two grievants were at their duty station which was noisy in most cases as the respondent operated big machines which produce a lot of sound.
b. The noisy environment made it necessary for one to shout when communicating. On the material day the grievants had moved to the final stage of the machine where finished products were usually received and packed for dispatch. The machine they were using had mechanical issues and they engaged in conversation how it could be repaired. The manager who was nearby asked them why they were talking and threatened to sack them.
c. The grievants were not pleased with the threat as it was not the first time the manager had threatened to sack them. After some minutes the manager came back to them accusing them of being rude to him and he reported the matter to HR for Orbit Products who was handling Industrial Relations matters for the respondent. The same evening, the grievants, shop stewards and management of both companies held a meeting and the matter successfully settled at that level.
d. The following day when the grievants were at work, the manager brought up the same issue and accused the grievants of telling their colleagues not to talk to him. The manager ordered them not to report to work and instead report to the respondent’s offices. When they reported the grievants were ordered to record their statements and thereafter leave for home. They were later issued with a letter of insubordination on 16th December, 2021. The respondent told the grievants that the matter was under investigation however before long, they were issued with letters of summary dismissal.
e. The claimant requested for a meeting with the respondent to amicably resolve the matter which was agreed but the parties could not agree necessitating the claimant to report a trade dispute to the Minister. The Ministry appointed Mr. Mulwa as a conciliator but after several attempts, the conciliator could not resolve the dispute hence the suit.
f. According to the claimant, the dismissal was wrongful and unfair and sought that the greivants be reinstated to work without loss of benefits and be paid salaries and benefits for the period they have been out of employment. Alternatively, the claimant sought that the greivants be compensated and paid their terminal dues.
g. Claimant averred that it was a term of the employment contract that she would work on probation for three months and thereafter be confirmed to regular employee. That she completed her probation period and continued with her duties with all due diligence as a laboratory technician.
h. The Claimant averred that her salary was subsequently reduced gradually at a reducing rate from what was agreed in the employment contract to a lower figure without any justifiable explanation.
i. The Claimant averred that she raised a complaint to the office concerned demanding to know reasons why she was being paid less than what she was entitled to under employment contract but the defendant ignored and continued to pay her less at the reducing rate.
j. The Claimant averred that without any tangible or justifiable reasons the Respondent to terminate his service without any warning. That the dismissal from employment was unlawful and illegal as the same resulted after she complained over the reduction of her monthly salary.
2. The Respondent in response filed a memorandum of response dated 7th November, 2022 and stated among others that:
I. Further to paragraph 4 above, the Respondent avers thus:
a) As at the time of summary dismissal, the grievants were on a one-month fixed term contract expiring on 31st December 2021;
See attached the grievants' December 2021 fixed term contract
b) That the Respondent lawfully terminated the Claimants' employment by summary dismissal for continuous insubordination and incitement which summary dismissal was reviewed to termination as recommended by Mr. Laurent Mulwa-the Conciliator;
See attached the Respondent’s letter dated 19th August 2021 along with copies of the grievants’ terminal due cheques and received at the Labour Office on 22nd August 2021
c) That the Claimants were taken through the full disciplinary hearing before the issuance of the summary dismissal letters dated 28th December 2021 but received by both grievants on 31st December 2021;
See attached the grievants' summary dismissal letters dated 28th December 2021, certificates of service and letter to labour officer of even date.
d) That a show cause letter dated 20th December 2021 were issued to the Claimants which they received and responded to on the same day both acknowledging they were discussing the outcome of a previous Manchester United and Arsenal football match and further that they argued and raised their voices at the manager who came to inquire on the noise at the working area;
See attached the grievants' separate show cause notices and reply to the show cause notices dated 20th December 2021.
e) That the Respondent further invited the grievants to a disciplinary hearing slated for 23rd December 2021 through an invitation letter dated 20th December 2021 ;
See attached the grievants’ invitation letters to a disciplinary hearing dated 20th December 2021.
f) That the invitation letters stipulated that the grievants could attend the disciplinary hearing with a witness of their own choice;
g) That during the disciplinary hearing held on 23rd December 2021, the grievants attended the meeting with Agnes Kaguria and Regina Kagrere as their witnesses respectively in which they owned their error in judgement in rudely arguing with their manager and sought forgiveness; and
See attached the grievants’ minutes of the disciplinary hearing held on 23rd December 2021
h) That on receipt of the summary dismissal letters, the grievants’ appealed the Respondent’s decision however the responded to the appeals on 25th January 2021 stating that it had analyzed the entire process and found the appeal lacking in merit.
See attached the grievants’ appeal letters dated 3rd January 2022 along with the Respondent’s reply dated 25th January 2022 and email extract of even date.
II. In further response to paragraph 5, the Respondent asserts that it could not have possibly terminated the grievants as alleged in the Statement of Claim since the summary dismissal was done lawfully following the grievants' gross misconduct involving continuous insubordination, rudeness and use foul language against the Respondent’s manager. Further, the Respondent took the grievants through the full disciplinary process before arriving at the decision to dismiss the grievants for their gross misconduct, and prepared terminal benefits cheques for collection by the grievants subject to clearance.
III. The Respondent in further reply states that it paid their grievants their December 2021 salaries in full despite the fact that they only worked for about 16 days
EVIDENCE
3. At the hearing Mr. Arnold Aguya gave evidence on behalf of his colleague. He stated that he filed a witness statement and bundle of documents in the matter which he relied on as his evidence. According to him, they were accused of talking loudly at work and that they were issued with show cause letters to which they responded and thereafter called for disciplinary hearing. The hearing took place on 20th December, 2021 and that they were accompanied by their colleagues as witnesses. They were thereafter dismissed and that he appealed the dismissal but was unsuccessful. Upon termination they were not paid their terminal dues.
4. In cross-examination, he stated that he was called on 28th December, 2021 and the letter referred to insubordination. He denied the accusation. According to him, their supervisor spoke to them and that the machine they were using had mechanical problems and further that they were discussing about a football match between Arsenal and Manchester which has taken place the previous day. He admitted raising his voice to his supervisor. Regarding leave, he stated that he used to go on leave and that they were hired on fixed term contracts for one month.
5. In re-examination he stated that he raised his voice because the workplace was noisy and that the show cause letter cited him for insubordination and not discussing football and that he was not copied letters forwarding his dues to the labour office.
6. The respondent’s witness Mr. Jonathan Matata stated that he was the operations manager for the respondent and that he recorded a statement on 7th November, 2022 which he relied on as his evidence in chief. He also relied on the bundle of documents filled with the response as his exhibits. According to him the grievants have never cleared with the respondent and that their final dues were submitted to the labour office.
7. In cross-examination Mr. Matata stated that due process was followed in terminating the grievants and that they were allowed to appeal the dismissal which they did and the appeal found to be without merit. It was his evidence that the reason for dismissal was continuous insubordination and that the grievants were always noisy in the factory while working and when the manager approached them about it they became rowdy.
CLAIMANTS’ SUBMISSIONS
8. The Claimant Union filed submissions dated 29th January, 2025 in which they narrated once more the facts leading to dismissal of the grievants. According to Mr. Onyango, the grievants were issued with show cause letters accusing them of making noise in the factory to which they responded and were subsequently called for disciplinary hearing and dismissed thereafter.
9. According to the Union, the grievants were issued with the notice dated 16th December, 2021 on 20th December, 2021. The delay in the receipt of the notice raised concerns about the fairness of the process as the grievants were given less time to respond. According to Mr. Onyango, the grievants only had two days to respond to the show cause letter and this was unreasonable. Mr. Onyango further submitted that the notice to show cause lacked in detail as it did not disclose the nature of the insubordination. The grievants were therefore required to respond to baseless and unsubstantiated allegations against them thereby placing them in an untenable position.
10. The respondent’s counsel Mr. Mudao on the other hand submitted that both the grievants were clear in their response to the show cause letter that they declined to obey the supervisors lawful order to lower their voices and that they confronted him on follow up in abusive/insulting language. This according to counsel was a valid ground for termination of service. In this respect counsel relied on the case of Jarso Jilo v. Agricultural Finance Corporation [2021]eKLR. Counsel submitted that whereas the grievants claim that the cause of the verbal exchange was over the broken down machine, this position was in conflict with their admission at the disciplinary hearing and their reply to the show cause letter that they got carried away in their discussion over the Manchester vs. Arsenal match.
11. Counsel submitted that in carrying out the termination, the respondent followed a fair procedure. The grievants were issued with show cause notices and subsequently called for disciplinary hearing which they attended with their colleagues of choice and dismissed thereafter. They subsequently appealed the dismissal but were unsuccessful.
12. On whether the grievants were entitled to the remedies sought, counsel submitted that they were summarily dismissed but nevertheless on the recommendation of the conciliator, the dismissal was reduced to normal termination. The respondent thereafter forwarded the grievants terminal dues cheque to the labour office. On gratuity, counsel submitted that whereas the grievants claimed Kshs. 87,719/- as gratuity, no evidence was led to substantiate this claim. The fixed term contracts produced made no provision for gratuity. Concerning service pay, Counsel submitted that the payslips produced in evidence showed the grievants were registered for NSSF hence not eligible for service pay.
DETERMINATION
13. The court has reviewed and considered the pleadings, testimony and submissions by the parties in this matter and the only issue that emerges is whether the respondent had justifiable reasons to dismiss the grievants. The Court has reviewed the procedure followed in carrying out the termination and is satisfied that the respondent adopted a fair procedure.
14. The grievants were accused of insubordination in that they refused or failed to lower their voices over the loud and heated argument they had over the outcome of a football duel between Arsenal and Manchester United. The Court noted that the supervisor/manager who claimed to have been defied was not called as a witness. No explanation was offered. The Court further noted that no evidence was produced in form of previous warning or caution over noise making by the grievants yet they were accused of always being noisy at work. The court observes that it is of common notoriety that discussions over football can sometimes be quite heated. There are reported cases where individuals have sustained serious injuries or even killed over disagreements concerning football. This however is for noting only and not an excuse to keep a rowdy workplace in the name of football.
15. Except in exceptional circumstances, it is usually not in the realm of this Court to do a merit review of the decision to terminate or dismiss an employee. In the case of British Leyland UK Ltd v. Swift [1981]IRLR 91, Lord Denning MR observed thus:
“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which an employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him”
16. In this particular case and as observed above, the respondent did not provide any evidence of previous warning to the grievants over noisemaking while at work yet they were accused of being habitual noisemakers. Further, the supervisor/manager alleged to have been defied was never called as witness and no reason was provided why. In the circumstances it is the Court’s view that the decision to dismiss the grievants was not justifiable and was disproportionate to the allegations against them. This Court in the case of Leon Yang Wang vs. Equity Bank [2023] eKLR observed that:
Reason for termination of employment need not be strictly proved but must however be reasonable and proportional in the circumstances. Termination of employment more often than not impacts on the life of an employee hence the decision to bring a contract of employment to an end ought to be governed by reasonableness and proportionality….In the English case of R v Home Secretary; Ex parte Daly [2001] 2 AC 532. It was stated as follows concerning the proportionality test: "leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision play a much greater role. Proportionality invites the court to evaluate the merits of the decision; first, proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations…”
17. The Court therefore finds and holds that the termination of the grievants was unfair within the meaning of section 45 of the Employment Act. Concerning the measure of compensation for unfair termination, the Court notes that the grievants were on monthly fixed term contracts and that they admitted to being noisy on the material day. An award of three months’ salary as compensation would be reasonable in the circumstances.
18. The grievants claimed for pro rata leave, annual leave and gratuity however no evidence was led or presented to support these heads of claim. The claim will therefore be disallowed for lack of proof.
19. In conclusion court will award each grievant as follows:
a. On month’s salary in lieu of notice….….Kshs. 18,892/-
i. 3 months’ salary compensation for unlawful termination of Employment ………………….….Kshs. 56,676/-
ii. Costs of the suit.
iii. For avoidance of doubt, Arnold Anguya and Wilfred Masi are awarded Kshs. 75,568/- each.
20. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division.