Jared Oduor Ondik v Skipkebe Limited

a. A declaration that the termination was unlawful, unfair and un-procedural and that the Claimant is entitled to payment of terminal benefits and compensatory damages. b. An order for the Respondents to pay the Claimant terminal benefits and compensatory damages totaling to Kshs.1,054,158.00. c. Costs of this suit plus interest thereon. d. Such further or other relief that this Honourable court may deem fit to grant. 2. The Respondent filed a response to the claim denying that the termination was unfair and averred that there was a valid reason for the same and fair procedure was followed. It further averred that it paid the Claimant and is not entitled to terminal benefits sought and prayed for the suit to be dismissed with costs. Evidence 3. The Claimant testified on 22nd October 2024 by adopting his statement dated 28th March 2023 and a bundle of documents JUDGMENT ELRC CAUSE NO. E270 OF 2023 2

page 2 of 15

dated even date. In brief his case was that on 17 th October 2020, he was taken to Urban Police Station, Mombasa for issuing a casual with waste tea and thereafter given a compassionate leave of 5 days. 4. The leave was extended and he was summoned for disciplinary hearing on 10th November 2020. He attended the hearing and thereafter he was issued with summary dismissal dated 10th November 2020. He contended that he was not given the reason for the termination. His gross salary was Kshs. 44,857.79 as at the time of the dismissal. 5. On cross-examination he admitted that he wrote a letter date 12th October, 2020 explaining the tea packets that led to his dismissal and asked for forgiveness. He admitted that he was invited to disciplinary hearing on 19 th November 2020 and was advised to be accompanied by another employee but he attended alone. He admitted that he was given a chance to explain himself after being informed of the allegations made against him. 6. He admitted during the hearing that he gave tea to Otieno and confirmed to the panel that that was a usual occurrence. JUDGMENT ELRC CAUSE NO. E270 OF 2023 3

page 3 of 15

He admitted that he never informed anyone since he was the one in charge of the warehouse. However, he confirmed that the tea packets belonged to the Respondent company. He admitted that the dismissal letter stated the reason for his dismissal. 7. He confirmed that he appealed against the summary dismissal and a hearing was done. He admitted that the minutes of the hearing stated that he did not have authority to give out tea but he maintained that he did not need approval to give out waste tea that spilled from damaged packaging. He admitted that he had given waste tea in past. 8. The Respondent called its Head of Human Resource, Ms. Priscah Keah as its only witness and she testified as RW1. She adopted her statement dated 8th December 2023 as her evidence in chief and produced 11 documents as exhibits. 9. In brief, her evidence was that the Claimant was employed by the Respondent as a Warehouse in charge. On 12 th October, 2020, he authorized issuance of tea to the Respondent’s casual employees including Alloyce Otieno who was caught JUDGMENT ELRC CAUSE NO. E270 OF 2023 4

page 4 of 15

red handed with packets of tea while leaving the company premises but other casual staff ran away. 10. By letter dated 5th November 2020, the Claimant was invited to a disciplinary hearing on 10th November 2020 in the company of his witness. However, he attended without any other employee and participated in the disciplinary hearing where he admitted having given staff tea without following procedure. After considering the Claimant’s explanation, the disciplinary panel found him guilty of issuing tea to casual employees without approval from the Warehouse Manager and decided that the Claimant be summary dismissed. 11. RW1 stated that she issued the Claimant with a dismissal letter dated 10th November 2020 and the Claimant appealed the dismissal. After hearing the appeal, Respondent reduced the summary dismissal to termination vide letter dated 8 th December 2020. 12. She testified that after the termination letter, the Claimant was paid Kshs. 82,416.00 made up of two months’ salary in lieu of notice, and 14.8 off days and days worked upto 11 th November 2020. The said sum was subjected to statutory JUDGMENT ELRC CAUSE NO. E270 OF 2023 5

page 5 of 15

deduction plus said loan of Kshs.18,523 and Kshs.1,500 for the staff welfare. 13. She further testified that upon payment off the above sum, the Claimant voluntarily signed a Declaration of Release and Discharge form. 14. On cross-examination she admitted that she was not present when the Claimant authorized the issuance of the tea to casual employees. She contended that the standard procedure for issuing tea is that authorization is by the sales officer. She mentioned that a casual employee was caught carrying two packets of tea and recorded statement with the police and he mentioned the Claimant. 15. She stated that the Claimant wrote a statement with the security at the gate to explain the incident and he admitted that he issued the casual staff with tea without authority. She admitted that the Claimant was in charge of the Warehouse but maintain that only the Warehouse Manager could give out tea. 16. She reiterated that the Claimant was given a hearing before his dismissal. She maintained that the Claimant appealed and JUDGMENT ELRC CAUSE NO. E270 OF 2023 6

page 6 of 15

the summary dismissal was reduced to termination. She maintained that the reason for the termination was valid. She confirmed that the Claimant worked for the Respondent for 23 years. She confirmed that the Claimant was issued with a cautionary letter but the same lapsed after 12 months from the date of issue. Submissions and issues for determination 17. After the close of the hearing both sides filed written submissions. Having considered the pleadings, evidence and submissions it is clear that the Claimant was employed by the Respondent as a Warehouse in-charge for 23 years before his summary dismissal on 10th November 2020. There is also no dispute that after the conversion of the summary dismissal to termination, the Claimant was paid Kshs.82,416.00 and executed a settlement agreement. 18. The issues for determination are: (a) (b) Whether the termination was unfair and unlawful. Whether the relief sought are merited. JUDGMENT ELRC CAUSE NO. E270 OF 2023 7

page 7 of 15

Unfair termination 19. Section 45(2) of the Employment Act provided that:“(2)A termination an employer is unfair of employment by if the employer fails to prove— (a)that the reason for the termination is valid; (b)that the reason for the termination is a fair reason— (i)related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; (c) that and the employment was terminated in termination of accordance with fair procedure.” 20. The above provision is clear that for employment contract to be fair, the employee must have a valid reason and a fair procedure must be followed. Valid reason is one that relates to the employee’s conduct, capacity and compatibility or based on the operational requirements of the employer. JUDGMENT ELRC CAUSE NO. E270 OF 2023 8

page 8 of 15

Reason 21. In the instant case, the Claimant was dismissed for issuing tea from the Warehouse to Alloyce Otieno and other casual employees without authority from the Warehouse Manager. The Claimant admitted that he gave the tea to the casual employees without seeking authority from any one alleging that he had full authority as the Warehouse in-charge. He confirmed that it was usual to give the waste teas that spilled from damaged packaging. 22. There is no doubt that he Claimant gave out property belonging to his employer without any prior authority. The burden was upon him to prove that he had authority to give out tea but he failed to do so. I have also verified from his letter of appointment and his confirmation letter that he did not have the power to give out any property belonging to the Respondent without seeking prior authorization. Consequently, I find that the reason for terminating the Claimant’s employment was valid. Procedure JUDGMENT ELRC CAUSE NO. E270 OF 2023 9

page 9 of 15

23. Section 41 of the Employment Act provides that:“ (1)Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. (2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing section 44(3) or (4) hear an employee under and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.” 24. There is evidence that the Claimant was accorded a chance to explain the incident to the security in writing and thereafter he was accorded a disciplinary hearing where he was informed of the allegations levelled against him. He was also allowed to be accompanied by a fellow employee of his own JUDGMENT ELRC CAUSE NO. E270 OF 2023 10

page 10 of 15

choice but he attended the hearing alone. He participated in the hearing and his explanation was considered before a decision to terminate his services was made. 25. In his appeal he pleaded for leniency contending that the summary dismissal was harsh considering his long and dedicated service to the company. The appeal was considered and the summary dismissal was reduced to normal termination and two months’ salary was offered. In the circumstances, I find that the procedure followed before terminating the Claimant’s employment was fair as it was in consonance with the provision of section 41 of the Employment Act. 26. Having found that the reason for the termination was grounded on a valid reason and the procedure followed was fair, I must hold that the summary dismissal and the final decision to terminate the Claimant’s employment was fair and lawful within the meaning of section 45 of the Employment Act. Reliefs JUDGMENT ELRC CAUSE NO. E270 OF 2023 11

page 11 of 15

27. In view of the foregoing conclusion, I find that the Claimant is not entitled to the declaration that the termination of his employment was unfair and unlawful. 28. As regard the prayer for damages, I agree with the Respondent that the Claimant is not deserving the same in view of the settlement agreements he executed discharging the Respondent from any further claim besides the Kshs.82,416.00 paid to him. The settlement agreement is contained in a document titled Declaration of Release and Discharge, dated 18th December 2020. 29. Paragraph 3 of the agreement states that:“I confirm and agree that the above represents full and final settlement of all my claims against the company and hereby release and forever discharge the company of and from all actions, proceedings, claims or demands whatsoever inclusive of all legal fees and costs whatsoever for or in respect of my employment with the company or otherwise howsoever.” JUDGMENT ELRC CAUSE NO. E270 OF 2023 12

page 12 of 15

30. In Coast Bottlers Ltd v. Kimathi Muthika [2018] KECA 523 (KLR), the Court of Appeal held that:“21. In our minds, it is clear that the parties had agreed that payment of the amount stated in the settlement agreement would absolve the Appellant from any further claims under the contract of employment and even in relation to the Respondent’s termination. It is instructive to note that the Respondent never denied signing the said agreement or questioned the veracity of the agreement. Further, from the record, we do not discern any misrepresentation on the import of the said agreement or incapacity on the Respondent’s part at the time he executed the same. It did not matter that the amount thereunder would be deemed as inadequate. As it stood the agreement was a binding contract between the parties. In Trinity Prime Investment Limited vs. Lion of Kenya Insurance Company Limited [2015] eKLR this court, while discussing JUDGMENT ELRC CAUSE NO. E270 OF 2023 13

page 13 of 15

the import of a discharge voucher is more or less similar as the agreement in question observed: “The execution of the discharge voucher, we agree with the learned Judge, constituted a complete contract. Even if payment by it was less than the total loss sum, the Appellant accepted it because execution he of wanted the payment voucher quickly was free and of misrepresentation, fraud or other. The Appellant was thus fully discharged.” 31. In the instant case, the Claimant did not deny that he signed the said settlement agreement or that he voluntarily signed the discharge. In the circumstances, I find that the said agreement constituted a binding contract between the Claimant and the Respondent and the Claimant is estopped from claiming further reliefs from his employment contract. However, he is entitled to his pension subject to the relevant scheme rules. 32. In conclusion, I find no merits in the Claimant’s case and I dismiss it with costs to the Respondent. JUDGMENT ELRC CAUSE NO. E270 OF 2023 14

page 14 of 15

DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 29TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE No appearance for Claimant Ratemo for Respondent JUDGMENT ELRC CAUSE NO. E270 OF 2023 15

page 15 of 15