British American Tobacco (K) Ltd v Kenyan Union of Commercial Food and Allied Workers (Kucfaw) [2019] KECA 698 (KLR)

The grievant admitted in a statement dated 15th March 2006 that items had been added to delivery notes and that he personally raised Goods Received Notes in respect thereof, causing the appellant to pay for goods never supplied. As Stores Supervisor and sole custodian of the delivery stamp, he bore overall responsibility. The court found no evidence of duress in recording his statements, and held the employer had reasonable grounds on a balance of probabilities.

Relying on its earlier decision in Judicial Service Commission v Gladys Boss Shollei & Another, the court reaffirmed that disciplinary proceedings between employer and employee are civil in nature, and the employer need only believe on reasonable grounds, supported by as much investigation as is reasonable, that the employee is guilty. An audit report was not required as conclusive proof since this was not a criminal trial.

Citing Kenya Engineering Workers Union v Narcol Aluminium Rolling Mills Ltd, the court restated its duty on a first appeal from the Labour and Employment Court: to evaluate and reconsider the evidence and come to its own independent conclusion, bearing in mind it did not see and hear the witnesses. This framed its re-examination of the justification for dismissal.

Having upheld the dismissal, the court set aside the awards of notice pay and compensation for wrongful dismissal but affirmed the trial court's award of salary arrears of Kshs.40,194.75 and leave pay of Kshs.108,763.40, totalling Kshs.148,958.15, with interest from the date of the trial judgment.