Gaga v Equator Bottlers Limited [2022] KEELRC 14688 (KLR)

Gaga v Equator Bottlers Limited (Cause 232 of 2015) [2022] KEELRC 14688 (KLR) (2 February 2022) (Judgment)

Neutral citation: [2022] KEELRC 14688 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Cause 232 of 2015

S Radido, J

February 2, 2022

Between

Jared Ouma Gaga

Claimant

and

Equator Bottlers Limited

Respondent

Judgment

1. Jared Ouma Gaga (the claimant) sued Equator Bottlers Ltd (the respondent) on July 17, 2015, and he stated the Issue in Dispute as:Unfair termination of Jared Ouma Gaga and failure to pay terminal benefits.

2. The respondent filed a response on November 2, 2015, and this prompted the claimant to file a reply to response on February 24, 2016.

3. The cause was heard on July 30, 2018, when the claimant testified and closed his case and on November 15, 2021, when 2 of the respondent’s clerks testified.

4. The claimant filed his submissions on December 14, 2021, while the respondent filed its submissions on January 12, 2022.

5. The court has considered the pleadings, evidence and submissions.

Unfair Termination Of Employment Procedural fairness 6. Section 35(1) of the Employment Act , 2007 envisages written notice of termination of employment (unless it is a case of summary dismissal), while section 41 of the Act requires the employer to afford the employee an opportunity to be heard before termination of employment.

7. The claimant testified that he was dismissed on October 2, 2013 without being afforded a chance to be heard on the allegations that he had stolen 130 crates of soda.

8. The respondent pleaded that a disciplinary hearing was held on October 1, 2013 at 1400 hours before the claimant was summarily dismissed.

9. However, the respondent’s witnesses stated under cross-examination that they were not present during the hearing.

10. It was incumbent upon the Respondent to demonstrate that a hearing as contemplated by section 41(2) of the Employment Act , 2007 was held.

11. The respondent did not provide any minutes of the hearing if any. The names of the persons who heard the claimant’s case were not disclosed.

12. The said persons (from the personnel office or any other management office) were not called to testify, and the failure to call them was not explained.

13. The court has no hesitation in finding that the summary dismissal of the claimant was not procedurally fair.

Substantive fairness 14. The allegation which caused the respondent to dismiss the claimant was the theft of 130 crates of soda.

15. The claimant’s testimony was that he was assigned, and he did deliver a total of 565 crates of soda.

16. On the other hand, the respondent contended that the claimant had been allocated 695 and not 565 crates of soda to deliver.

17. The 2 witnesses called by the respondent testified that the dispatch note(s) that they saw was for 565 crates of soda and that 130 crates were missing (were not received) and were therefore not recorded in the delivery book.

18. The respondent did not bring any evidence that the claimant, a driver, was involved in the process of processing orders, issuing of dispatches or invoices or in the loading of the truck(s).

19. The respondent did not also produce any evidence from the security department, which was stated to have released the truck driven by the claimant before ascertaining the crates of soda leaving the factory.

20. The court finds that the respondent did not discharge the burden imposed on it by sections 43 and 45 of the Employment Act , 2007.

Remedies Salary in lieu of notice 21. The claimant prayed for the equivalent of 3-months’ salary in lieu of notice but did not provide any contractual basis for the award.

22. The court will therefore award the equivalent of a 1-month salary in lieu of notice in terms of section 35(1)(c) of the Employment Act ,2007 (basic salary in September 2013 was Kshs 28,180/-).

Compensation 23. The claimant was employed on February 13, 2012 and was dismissed on October 2, 2013. He served the respondent for slightly under 2 years.

24. In consideration of the length of service, the court is of the view that the equivalent of 2-months gross wages as compensation would be appropriate (gross salary in September 2013 was Kshs 50,014/-).

Conclusion and Orders 25. The court finds and declares that the summary dismissal of the claimant was unfair, and he is awarded:(a)Pay in lieu of notice Kshs 28,180/-(b)Compensation Kshs 100,028/-Total Kshs 128,208/-

26. Claimant to have costs.

Delivered through Microsoft teams, dated and signed in Kisumu on this 2ndday of February 2022. Radido Stephen, MCIArbJudgeAppearances__For Claimant Mr Nyanga instructed by Ben Aduol Nyanga & Co. AdvocatesFor Respondent Mr Odhiambo instructed by Wasuna & Co. AdvocatesCourt Assistant Chrispo Aura3| 6 Page Kisumu Cause No. 232 of 2015