John Okoth Ochieng v Kibos Sugar & Allied Industries Ltd [2021] KEELRC 1926 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 259 OF 2015

JOHN OKOTH OCHIENG........................................................................CLAIMANT

v

KIBOS SUGAR & ALLIED INDUSTRIES LTD...............................RESPONDENT

JUDGMENT

1. This Cause was heard on 20 July 2017 when John Okoth Ochieng (the Claimant) testified and closed his case, after which Kibos Sugar & Allied Industries Ltd (the Respondent) sought an adjournment.

2. The Respondent's first witness testimony was taken on 9 July 2018, and the hearing was adjourned to enable it to present the second witness. However, the Respondent sought adjournment severally to secure the second witness's attendance, but he was never presented.

3. The Court declined another application for adjournment by the Respondent on 15 December 2020, forcing the Respondent to close its case.

4. The Claimant’s submissions were not on file (should have been filed/served before 15 January 2021).  The Respondent’s submissions were also not on file (should have been filed/served before 15 February 2021).

Unfair termination of employment

Procedural fairness

5. The Respondent employed the Claimant as a Field Harvesting Officer in January 2012.

6. On 29 April 2014, the Respondent served the Claimant with a show-cause notice. The letter also put the Claimant on 21 days suspension.

7. The Claimant stated that on or around 19 June 2014, the Agricultural manager called him to attend a disciplinary hearing but upon reporting, a hearing was not conducted and that instead, he was reinstated and deployed to Control Office.

8. According to the Claimant, the next day, at around 2. 30 pm, he was given a letter terminating his employment by the Human Resources Manager.

9. The Claimant asserted that the termination was unfair because he was not afforded an opportunity to make representations.

10. The Respondent issued a show-cause to the Claimant on 29 April 2014. The show-cause set out the allegations the Claimant was required to respond to, and he was given 24 hours within which to respond.

11. The Claimant did not allege or prove that the 24 hours was not sufficient.

12. The Court finds that the Respondent was in substantial compliance with the requirements of section 41 of the Employment Act, 2007 on procedural fairness.

Substantive fairness

13. In terms of sections 43 and 45 of the Employment Act, 2007, the Respondent had the burden of not only proving but proving as valid and fair the reasons for terminating the Claimant’s employment.

14. In an endeavour to discharge the burden, the Respondent called 1-witness, the Human Resources Manager.

15. The reasons which were given for terminating the Claimant’s employment were: issuing a delivery note no. 313731 dated 19 February 2014 to a farmer for a non-existent cane; issuing a delivery note no. 313722 dated 18 February 2014 to a wrong farmer and leaving delivery notebook serial no 315900 – 315949 with third parties without authorisation.

16. The Respondent produced copies of the delivery notes and letters of complaint from the affected farmers.

17. The Claimant conceded in his examination in chief that his duties included preparation of delivery notes but denied that he made the entries in the delivery note dated 19 February 2014.

18. The Claimant admitted that he prepared the delivery note dated 18 February 2014 and that it was not on the allocation program for cane delivery for that day.

19. However, the Claimant explained that he prepared the delivery note after consultation with the cooperative society to which the farmer(s) belonged.

20. In the view of the Court, what the Claimant did was not sanctioned by the Respondent. It was an act of dishonesty, and it was a valid and fair reason to terminate his employment. The Court so finds.

21. Consequently, compensation as a remedy does not apply.

Breach of contract

Overtime

22. The Claimant did not disclose either in the witness statement or during oral testimony the working hours agreed with the Respondent beyond which he would be entitled to overtime pay.

23.  Having failed to lay an evidential basis for this head of the claim, relief is declined.

Gratuity/service pay

24. A copy of a payslip produced by the Claimant shows that he was a contributing member of the National Social Security Fund.

25. Under section 35(5) & (6) of the Employment Act, 2007, the Claimant is not entitled to service pay. If there was any other basis for gratuity, it was not proved.

26. Relief is declined.

House allowance

27. The Claimant’s payslip indicates that he was earning a house allowance. Nothing turns on this head of the claim.

Leave days

28. The Respondent informed the Claimant that he would be paid accrued leave days and requested that he collect the same from the Payroll Manager. He should collect the dues.

Severance pay

29. The Claimant did not separate with the Respondent on account of redundancy, and severance pay is not available to him.

Conclusion and Orders

30. From the foregoing, it must have become apparent that the Cause has no merit. The Court so finds, and it is dismissed with costs.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN NAIROBI ON THIS 31ST DAY OF MARCH 2021.

RADIDO STEPHEN,MCIARB

JUDGE

APPEARANCES

For Claimant Nyanga & Co. Advocates

For Respondent Onsongo & Co. Advocates

Court Assistant Chrispo Aura