Hudson Omondi Apudo v Chandarana Supermarkets Limited [2018] KEELRC 1931 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 2099 OF 2011

HUDSON OMONDI APUDO...........................................CLAIMANT

- VERSUS -

CHANDARANA SUPERMARKETS LIMITED.......RESPONDENT

(Before Hon. Justice Byram Ongaya on Thursday 31st May, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 15. 12. 2011 through Odawa & Company Advocates. The claimant prayed for judgment against the respondent for:

a. The sum of Kshs. 29, 495. 00 being one month notice pay, 15 days for each year served, any unpaid leave days, salary for days worked, and overtime and holiday payment.

b. Terminal dues.

c. Costs.

d. Interest.

e. Any other relief as the Court may deem just and expedient.

The respondent filed the memorandum of defence on 09. 03. 2012. The respondent prayed that the suit be dismissed with costs.

There is no dispute that the respondent employed the claimant on 02. 11. 2009 as a cashier at Kshs.8, 274. 00 per month.

The evidence was that on 11. 09. 2011, the claimant while serving a customer neglected his duty as a cashier with the consequence that a towel was given to a customer without its being scanned for payment. The respondent’s assistant manager detected the discrepancy and the claimant was asked to offer an explanation. The claimant replied in writing thus:

“As I was serving a customer yesterday the customer had less money and had to remove some items from his bill. I requested for the card and voided vim 1Kg and two towels but one towel was packed mistakenly by the packer and the manager realised I had not scanned one piece of towel. Today while handling my cashier duties I was told to close the machine and headed for home”

The letter of summary dismissal was dated 13. 09. 2011. The claimant’s explanation was found unsatisfactory. It was observed that it was not the first time the claimant had failed to scan items leading to shorts. The claimant was dismissed from employment accordingly.

At the hearing the claimant testified that he had received previous warnings about the shorts in the cash he was supposed to account for.

The claimant failed to file submissions as directed and the respondent opted not to file submissions.

The claim is for one month salary in lieu of notice. The evidence is clear that the claimant was dismissed on account of the failure to scan the towel. The claimant did not dispute that much but shifted the blame to the packer. The court returns that the respondent had a valid reason to summarily dismiss the claimant in view of the reasons given and in view of the claimant’s previous and similar misconduct. In such circumstances, summary dismissal being a dismissal with lesser notice as prescribed in law or contract, and on account of gross misconduct, it has been established that it was justified in the circumstances of the present case.  The claimant failed to justify all other reliefs. The Court has considered all circumstances including that the respondent opted not to file submissions and not to call a witness. The court returns that each party shall bear own costs of the suit.

In conclusion, judgment is hereby entered for the respondent against the claimant for dismissal of the claimant’s suit with orders that each party shall bear own costs of the suit.

Signed, datedanddeliveredin court atNairobithisThursday 31st May, 2018.

BYRAM ONGAYA

JUDGE