Odie v Jims Fresh Vegetables Growers and Exporters Limited (Employment and Labour Relations Appeal E221 of 2022) [2024] KEELRC 2544 (KLR)

The Appellant, as Livestock Responsible, sold a cow on the Respondent's farm without authorization or any paper trail, and pocketed proceeds from a buyer who was stopped while transporting the cow. He admitted the sale and use of funds. This dishonesty breached the trust inherent in his position and went to the root of the employment relationship, satisfying the McKinley v BC Tel contextual test for dismissal on grounds of dishonesty.

Beyond the letter of suspension, the Respondent led no evidence of affording the Appellant notification and a hearing as contemplated by Section 41. Its assertion that the Appellant deserted duty was doubtful: DW1 could not recall the last time the Appellant was on the farm, and the Respondent made no attempt to trace him or issue a show-cause notice. The trial Magistrate therefore erred in finding the disciplinary process was frustrated by the Appellant.

Because termination was substantively justified but procedurally unfair, one month's notice pay was sustained and compensatory damages of one month's salary awarded, taking into account the Appellant's contribution to his termination. Unpaid salary was admitted and uncontroverted. Leave records were not exhibited as required by Section 74(1)(f). Overtime was proved paid from the muster roll, and NSSF membership excluded service pay under Section 35(6)(d).