Introduction
There are 2 salient requirements that employers are required to strictly abide by in their decision to terminate an employee: Firstly, there must be a valid reason for the decision, and Secondly, the All Procedural requirements must be deliberately followed.
Summary
Mr. Kiriga had joined East Africa Malting-a subsidiary of East Africa Breweries Limited- in 1993 as a junior officer. He rose through the ranks was promoted to the position of Operations Manager in the year 2010. His job description included Overseeing Barley malt production and storage and general administration within the Operations departments at the Kampala Road site and at the Lesiolo grain storage site.
When his employer noted discrepancies between the book values and his inputted values, he was issued with a Notice To Show Cause. He appeared at the disciplinary hearing and defended himself by stating that:
- Some silos lacked readings hence the values had to be manually inputted
- There were no existing stock taking procedures at the time of his promotion, hence he could not be faulted for relying on his experience.
- The book value of some of the silos did not account for factors like spillage, grain moisture content etc. and hence required to be manually reviewed after inspection.
- Additionally, he stated that the was only responsible for the silos on Kampala road and Lesiolo Site, but had been singled as being responsible for the discrepancies in the stock take readings of other branches as well.
Despite his reasonable defence, his employer proceeded to terminate his employment. He was however informed of the decision after 3 weeks instead of the 5 days indicated in their employee handbook.
Analysis
Section 23 of the Employment Act 2007 clarly underscores that “…In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.
In the present case, the employer’s allegations were easily explained away by Mr. Kiriga. It was reasonably foreseeable that variations between the book and storage values would exists due to weather and change in moisture content. It would also be unreasonable to expect Mr. Kiriga to manually take stock measurements in silos where measurements were not provided. Furthermore, EA Malting’s own witnesses testified that some values had to be manually inputted, and that the discrepancies persisted even after Mr. Kiriga’s dismissal. This negated EA Malting’s lawful justification to terminate the Claimant’s employment.
In addition, the employer had failed to abide by its own Employee Handbook. The Handbook required that all employee’ facing disciplinary action be notified of the outcome within 5 days. Admittedly, the employer’s witness stated that there had been ‘delays’ that resulted in Mr. Kiriga being informed of the outcome full 3 weeks later. The Claimant also argued that he had not been informed of an external audit undertaken by his former employer, and was only furnished with the results a day to the hearing. This hampered his ability to adequately prepare his defence, a clear violation of his right to fair hearing.
In employment matters where the law requires strict adherence to laws and policy, any omission is grounds for a claim of unfair termination.
Conclusion
In the present case, the court held that East Africa Malting lacked a justifiable reason to terminate Mr. Kiriga. It also found that the termination was not procedurally fair as the employer had not adhered to its own policy on timelines.
The court therefore held that Mr. Kiriga was unfairly terminated and entitled to Kshs 8,278,753/= as compensation.
