MARY GORETY VS TUSKER MATRESSES LTD

1. The Claimant filed her statement of claim dated 6th March, 2018 and pleaded inter alia as follows: -
a. On or about 1st June,2017 the Claimant was employed by the Respondent as an Intern Cashier at a monthly basic salary of Kshs 20,000/= until 6th September,2017 when she was terminated without notice.
b. The Claimant averred that she was terminated without notice contrary to section 35 of the Employment Act.
c. That it was on or about 15th August,2017 the Respondent served her with a show cause letter to defend herself against a variance loss of Kshs 50,000 that was realized from her till on 9th August,2017.
d. The Claimant averred that she responded to the letter and was later invited for a hearing before the disciplinary committee which was held on 31st August,2017.
e. That on 31st August,2017 during the hearing the Claimant was not accorded the right to be represented by a fellow employee against section 41 of the Employment Act.
f. The Claimant averred that the Respondent consequently terminated her employment by unfairly dismissing her. She further added that she served the Respondent with diligence and utmost loyalty until 15th August,2017 when the Respondent terminated her services. That she was given a recommendation letter stating the good qualities she possessed and her terrific performance in her work.
g. The Claimant averred that the Respondent served her with a termination letter dated 6th September,2017 which was to take effect from 31st August, 2017.That this contravened the amount of days to issue notice of termination according to Employment Act.
h. The Claimant averred that she approached Kituo cha Sheria for legal advice as a result of which a demand letter and notice of appointment to sue dated 16th October,2017 were issued in default. That the Respondent did not respond to the Claimant’s demand letters.
i. That a result of failure by the Respondent to respond the Claimant seeks remedy from the court of Kshs 289,561.00/=. This includes August Salary, notice pay, leave days, overtime, matanga refund and compensation for unfair termination.
2. The Claimant in the upshot prayed for the following against the Respondent;
a. A declaration that the termination of the Claimants’ employment and/or dismissal was unfair.
b. A declaration that the Respondent fundamentally breached her statutory obligations under the Constitution of Kenya.
c. An order directing and/or compelling the Respondent to pay the Claimant the calculated sum being Kshs 289,561.00/= as particularized in its claim with interest at court rates from date of filing of this suit.
d. An order directing and/or compelling the Respondent to issue a certificate of service to the Claimant in accordance with Section 51 of the Employment Act.
e. An order that the costs of this suit be awarded to the respondent with interest thereon at court rates from the date of filing of the claim.
f. Any other relief as the court would deem just and expedient to grant.

3. The Respondent filed its statement of Response dated 24th April, 2018 and they averred inter alia as follows;
i. The Respondent denied the contents of the claim and averred that it runs a chain of retail stores by the name and style of Tuskys Supermarkets with branches across the country.
ii. The Respondent averred that though it was entitled to terminate the Claimant summarily and without notice in line with section 44(1) of the Employment Act on account of Claimant’s gross misconduct, the Respondent still paid to her notice pay.
iii. The Respondent admitted issuing the show cause letter and inviting the Claimant to disciplinary hearing. That the Claimant was accorded the opportunity to be represented by a fellow employee of choice, call and cross examine witnesses, present his own case and testifying as well as access all information that was to be used as evidence in the matter in line with section 41 of the Employment Act.
iv. The Respondent averred that prior to the termination, the Claimant had engaged in previous activities, namely generating a CID report before prior authorization from management amounting to a misconduct where the Respondent responded by issuing the Claimant a warning letter.
v. The Respondent averred that the termination arose from the fact that on 9th August,2017 while working as a cashier at the Pioneer branch, the Claimant willingly left her work station unattended without prior permission from her supervisor and without following the proper cashiering procedure.
vi. The Respondent further averred that after the Claimant had left the branch a variance loss of Kshs 50,000/= was realized from the till at which she was operating. The Respondent relies on its Branch Audit Report.
vii. The Respondent averred that during the disciplinary hearing the Claimant admitted to not following the proper cashiering procedure, additionally admitted that when such incidences happen it is the cashier in this case herself who should be held responsible.
viii. The Respondent averred that the recommendation letter referred to by the Claimant was given to her at the lapse of the Claimant’s initial internship period of six months which she had failed to collect then.
ix. The Respondent further averred that the Claimant’s dismissal was lawful and in line with the Employment Act in that it was as a result of Claimants actions which amounted to gross misconduct and in accordance with the contract of Employment clause 8 which provided for such termination if the Claimant neglects her duties.
x. The Respondent averred that the Claimant was invited and accorded opportunity to show cause why disciplinary action should not be taken against her. Dissatisfied with her response the Respondent invited her for a hearing before terminating her. That the Respondent followed due process where at the hearing the Claimant acknowledged responsibility of causing financial loss to the Respondent and suggested a payment plan to recover the funds lost.
xi. The Respondent averred that although it was entitled to summarily dismiss the Claimant it computed her terminal benefits and included one- month Notice pay.
xii. The Respondent further averred that the Claimant was not entitled to any of terminal dues and or reliefs sought in her claim. That the claim was ill advised and misinformed and an attempt to further defraud the Respondent and therefore a waste of court’s judicial time. That the same should be dismissed in its entirety with costs.
4. The Claimant filed a reply to the statement of claim dated 7th May,2018 and averred as follows;
i. That no money was paid, the calculations as shown in the Respondent letter was wrong. That on the issue of Notice to show cause the formation of the people who attended did not comply with section 41 of the Employment Act as the person said to be her witness was an imposed witness invited by the company.
ii. That she did everything procedurally and no at time was she told it was wrong to generate CID. That she sought permission from chief cashier one Bernice Muthoni and was granted.
iii. That when the allegation was made later it was confirmed that the money was wrongly posted and the Chief Cashier informed her in presence of her witness one Nelly Gathoni Wainaina.
iv. That she was coerced in to signing the statement on liability of lost funds. That she has a good case against the Respondent hence the response should be struck out with costs and judgment entered for the Claimant as prayed in the claim.

EVIDENCE
5. The Claimant’s case was heard on 21st November,2023 in absence of the Respondent or its counsel. She stated that she was employed in 2017 and placed on probation for 6 months and thereafter given a contract to sign. The contract was for one year, running from May, 2017.
6. CW 1testified that she was terminated in September,2017 during election period. According to her, she asked her boss to leave around 3 pm upon which her boss asked her to close the till, count the money and write the balance on a piece of paper and give her. That she did as advised and the next day her boss, the chief cashier told her some money was missing.
7. CW 1 stated that from the CCTV footage there was a cashier by the name Fransisca who sat on her till and took the money to the depositor. That Fransisca confirmed this.
8. It was the Claimant’s testimony that someone from Headquarters came to investigate the issue and that at around 11.00 am she was told by the chief Casher that the money had been recovered. Further, she was told to go to the Headquarters the next day where she was given a show cause letter.
9. It was her testimony that she went for the disciplinary hearing but was never given opportunity to speak. One of her colleagues, Tangara, accompanied her to the hearing and told her to answer yes and no. It was her evidence that she was not allowed to call witnesses as she intended to call Fransisca and Nelly but she was refused. That the said Fransisca wrote a letter which she had and that Nelly used to sit next to her.
10. It was her testimony that on that day she was given a letter to sign that she will pay back the money but she did not sign. She then went to Kituo cha Sheria who advised her to file case.

DETERMINATION
11. I has reviewed and considered the pleadings by both parties and testimony by the Claimant and has framed three issues for determination, namely:
a. Whether the Claimant’s termination of employment was unfair and unlawful
b. Whether the Claimant is entitled to the reliefs sought

Whether the Claimant’s termination of employment was unfair and unlawful
12. In this instant case, the Respondent alleged that they terminated the Claimant on grounds neglect of duty as the Claimant left her work station unattended without prior permission from her supervisor and following proper cashiering procedure.
13. It is not in dispute that the Claimant was aware of how she should have handed over her work station. In the end there was a variance of Kshs 50,000/= from her till. Even though the Claimant testified that the same amount was taken by her colleague through CCTV footage it was not produced in this court.
14. The Claimant also relies on evidence of her colleague Nelly whom she never called to Court to testify. Under section 47(5) of the Employment Act, the burden of proving that unfair termination of employment or wrongful dismissal has occurred is on the employee while the burden of justifying the grounds for termination or wrongful dismissal is on the employer. The two burdens has been held severally by this Court as mutually exclusive. That is to say failure by one party to discharge the burden cast upon them by law, does not lessen the other’s burden. It does not matter that the case proceeded as undefended cause. The employees must still prove to the required standards in civil claims, that the termination was unfair and or the dismissal was wrongful.
15. Further, under Section 44 (4) (c) of the Employment Act, 2007, neglect of duty amounts to gross misconduct which is a ground for summary dismissal. The Claimant admitted that she could be deducted Kshs 3,000/= every month until the amount is recovered in the minutes produced by the Respondent. The Claimant has not disputed signing the said minutes. She only stated she signed the same under duress without any proof.
16. The Claimant brought to this court’s attention the recommendation letter dated 2nd October,2017 after her termination by the Respondent. The Respondent maintained that the letter was issued after her first internship and the Claimant did not pick it then. Even if the same was given afterwards the Respondent did it in good faith to help the Claimant secure other jobs.
17. It was therefore clear that the reason for the termination was a valid and fair one as provided for under section 43 of the Employment Act. The courts have always maintained that there must be a valid and fair reason before termination. In Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR the court held as follows: -
Invariably therefore, before an employer can exercise their right to terminate the contract of an employee, there must be valid reason or reasons that touch on grounds of misconduct, poor performance or physical incapacity.
18. In this case the Respondent communicated the reasons for the intended termination on the letter of 15th August,2017. The Claimant responded to the letter on 16th August,2017. She was invited for the Disciplinary hearing vide a letter of 22ndAugust, 2017 where the reasons all remained the same. That is, neglect of duty. In this regard, the Court finds that the claimant failed to satisfactorily discharge the legal burden cast upon her by section 47(5) of the Employment Act.
19. Regarding procedural fairness courts have repeatedly emphasized on both substantial and procedural fairness in a number of cases including in the case of Janet Nyandiko versus Kenya Commercial Bank Limited (2017) eKLR. That is to say for termination to pass the fairness test, it must be shown that there was not only substantive but also procedural fairness.
20. Further Section 41 is the governing law on notification and hearing before termination on grounds of misconduct. It rquires that an employee to be explained to, the reason for termination in language he/she understands and that the employer considers the representations by such an employee in presence of an employee of his/her choice.
21. This was the Position by the court 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.
22. The claimant did nod deny that the Respondent her a show cause letter dated 15th August, 2017. She responded to this letter by her letter of 16th August,2017. She was later invited for disciplinary hearing vide a letter dated 22nd August, 2017. The letter was self-explanatory on the charges against her and what was required of her at the hearing.
23. The Claimant admitted attending the disciplinary hearing of 31st August, 2017. The Claimant confirmed during hearing that she knew the procedure she ought to have followed and requested to be deducted some Kshs 3,000/= in order to pay back the lost amounts.
24. The Claimant faults the hearing that she did not go with an employee of her choice and that one at the hearing was imposed by the Respondent. The Claimant also alleges that she was not given opportunity to speak or call her witnesses. I disagree with the Claimant’s assertions for the reasons that the letter inviting her for the disciplinary hearing was clear that she could attend the hearing with a fellow employee and call witnesses in support of her case. I am satisfied that the Claimant therefore decided not to go with a fellow employee and did not attend with her witnesses as required. In any event, it was crucial that the claimant calls at least one of the colleagues she mentioned as her witness in the matter before court.
Whether the Claimant is entitled to reliefs sought.
25. The prayer for 12 months compensation for unfair termination fails since the termination was lawful.
26. The prayer for one Month’s salary in lieu of notice and August salary also fails since from the terminal benefits computation by the Respondent it was that the Claimant owed the Respondent Kshs 26,760.00./= It was further clear from the terminal benefits that the Claimant was given salary for August and notice pay which was reduced by the money lost at her hands which she acknowledged she was responsible.
27. The prayer for overtime and Matanga refund has not been specifically proved with evidence hence they also fail.
28. The prayer for leave also fails since the Claimant had worked with the Respondent for less than six months to be entitled to this leave even though the same was to be calculated on pro rata basis.
29. The Claimant is however entitled to certificate of service under section 51 of the Employment Act.
30. In conclusion the Claimant’s claim is found without merit and is hereby dismissed costs.
31. It is so ordered.
Dated at Nairobi this 23rd day February, 2024
Delivered virtually this 23rd day of February, 2024

Abuodha Nelson Jorum
Judge