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ELRCPartially AllowedCause No. 2059 of 2013· [2016] KEELRC 46 (KLR)

Martin Bundi Gitonga v Del Monte Kenya Limited [2016] KEELRC 46 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
25 November 2016
7,530 words in judgment
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The bottom line

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A Kenyan court ruled Del Monte unfairly sacked a stores foreman for a data entry error, ordering substantial compensation because the disciplinary process was rushed and unfair.

What this practically means

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Executive summary

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The Claimant, employed by Del Monte Kenya Limited from July 1999 and promoted to Foreman-Stores, was summarily dismissed on 15 February 2013 over an overstatement of sugar usage by 5,000kgs in January 2013 inventory records. The error was traced to storeroom requisitions 888855 and 888858 wrongly keyed into the system by the Data Entry Clerk, Jane Wangechi Wairimu. The Claimant contended the variance only came to his attention on 4 February 2013, that he immediately investigated, and that the Data Entry Clerk had admitted the error while the Issuing Clerk, who failed to detect it in daily reconciliation, was not dismissed. The Respondent justified the termination as negligence and gross misconduct by the overall responsible officer. The Court found the termination substantively unjustified and procedurally flawed: the show cause required a response within 24 hours, the disciplinary hearing was convened before responses were filed, the same senior officers who interrogated the Claimant sat on the panel, the audit report was never shared with him, and his section 41 rights were not genuinely secured. The Court applied authorities holding that internal disciplinary procedures must be genuine and not a sham. However, the claim of discrimination was rejected as unpleaded, being raised only in submissions. The Court declared the termination unfair, awarded 10 months' gross pay as compensation (Kshs.880,770) considering his prior cautions and warnings, confirmed admitted terminal dues (pay for days worked, notice pay, pro rata leave, frozen service dues, and provident/pension dues per RBA guidelines), and awarded costs to the Claimant. Judgment was delivered by M. Mbaru, J, on 25 November 2016.

Key legal issues

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01

Substantive fairness of the termination

Holding

The termination was not justified; the Claimant discovered and traced the error once it came to his attention on 4th February 2013 and a lesser sanction would have sufficed

Reasoning

The evidence of the Data Entry Clerk and Stores Supervisor showed the error was committed by the Data Entry Clerk and only came to the Claimant's attention on 4 February 2013, whereupon he immediately investigated, retrieved records and traced the error. The Court held that even if he was slow to detect it, termination was too harsh and a stern warning would have been sufficient.

p. 11
02

Procedural fairness under sections 41 and 45

Holding

The procedure adopted was unfair: show cause responses were required within 24 hours, the disciplinary hearing was convened before the Claimant's responses were submitted, and his section 41 rights were not genuinely secured

Reasoning

The Court reviewed the chronology: the show cause notice on 13 February required response in 24 hours; the invitation to the hearing on 14 February was issued before responses were filed; the same officers who interrogated the Claimant on 8 February sat on the disciplinary panel; and the audit report was never shared with him. The ground was hostile and the process eschewed against him, contrary to sections 41 and 45.

p. 10
03

Whether discrimination was established

Holding

No finding made as the allegation was raised only in submissions and not pleaded

Reasoning

The Court took discrimination allegations seriously as they are prohibited under the Constitution and the Employment Act, but held that each party must be given a fair chance to argue their case; raising such a serious allegation after close of pleadings would prejudice the Respondent.

p. 12
04

Entitlement to terminal dues

Holding

Admitted dues confirmed including pay for days worked, notice pay at 45 days, pro rata leave, frozen service dues and provident/pension dues

Reasoning

The Respondent admitted the terminal dues subject to clearance. The Court confirmed them, noting the offered 45 days' notice pay surpassed the contractual one-month notice term, and held that clearance should not be used to stall payment of lawfully owing dues.

p. 8

Legal principles established

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  • An employer's disciplinary procedures under section 41 of the Employment Act must be genuine and purposive and not a sham
  • A blanket sanction against all employees in a department for one employee's admitted error is an unfair labour practice
  • Allegations of workplace discrimination must be specifically pleaded and cannot be raised for the first time in submissions
  • An employer should not use the clearance process to frustrate payment of lawfully owing terminal dues
  • Where there is procedural unfairness, the substantive issue faced by the employee is muzzled

Court orders

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  1. 1.Declaration that the Claimant was unfairly terminated from his employment
  2. 2.Compensation of Kshs.880,770.00 (10 months gross pay)
  3. 3.Salary due for 15 days worked in February 2013 at Kshs.44,038.00
  4. 4.Accrued leave of 15.48 days at Kshs.45,447.70
  5. 5.3 months' pay in lieu of notice at Kshs.264,231.00
  6. 6.Frozen service dues of Kshs.50,496.99
  7. 7.Costs of the suit to the Claimant
  8. 8.Provident and pension dues payable per RBA guidelines and pension management regulations
Jurisdiction invoked
Articles 41 and 47 of the Constitution and the Employment Act (ss. 41, 43, 45); fair administrative action; Employment and Labour Relations Court jurisdiction over unfair termination claims

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Martin Bundi Gitonga v Del Monte Kenya Limited [2016] KEELRC 46 (KLR)", Case Analysis (2016). Cause No. 2059 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/46/eng@2016-11-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.