Pelecia Olum v Export Processing Zones Authority [2014] KEELRC 82 (KLR)

The dismissal letter cited two losses: Kshs. 1,203,488 occasioned by Moses Nyongesa and Kshs. 29,136 to have been banked by Peter Ndara. The Claimant had no authority over Nyongesa's collections; unverified hearsay reports were given no probative value as their makers were not called. The Water Cashier Buttuk, who failed to report for nearly a year, was left unscathed, and the Finance Manager's supervision lapses undermined blame. Peter Ndara was not called, and the Claimant was never afforded a chance to face him. Substantive justification therefore failed.

Employees were summoned before the Board Audit Committee on very short notice without any charges being preferred, denying them the opportunity to know and answer the accusations. The Respondent's staff rules, which dispense with charges where termination is in view, were held to be contrary to the law and in need of amendment. The Court reasoned it is illogical to serve charges in minor disciplinary matters while denying them for summary dismissal, and that guilt cannot be determined without a hearing.

Having found the dismissal unfair both substantively and procedurally, the Court applied Section 49 discretion, taking into account the Claimant's length of service (from 2002) and the Respondent's conduct, including the unjustified withholding of final dues. Notice pay and salary for 17 days worked in August 2012 were awarded as unpaid contractual dues, and the leave allowance claim succeeded given the unlawfulness of the dismissal.

The Respondent sought 50% of Kshs. 29,136 allegedly lost through the Claimant. The Court found that no evidence was led establishing the Claimant's culpability in that loss; Peter Ndara, who was to have banked the money, was not called to testify. The counterclaim therefore failed and was dismissed in its entirety.