An employee who was wrongfully dismissed by Freight in Time Limited an international freight and clearing company, has been awarded KShs 740,000 by Justice Onesmus Makau of the Employment and Labour Relations Court in Nairobi.
Henry Aganda had, through lawyer John Ogada sued the employer for wrongful and unfair dismissal, withholding his salaries and dues and for attempting to take from the employer a vehicle he had bought through a loan.
In the case presented by lawyer Ogada, the claimant told the court that he was employed by Freight in Time Limited initially as a Sales Manager and was later promoted to the position of Group Business Development manager at a salary of Sh 180,000 per month and other benefits.
On 25th May 2015, one of the company’s managers, a Mr Thuo, informed him that his services had been terminated and that he should proceed to clear with the Human Resources Manager before leaving the company.
Mr Aganda further told the court that no reason was communicated to him for the dismissal and there was no previous warning. He was not allowed to say anything and he was not given prior notice.
After handing over all the property of the company to his employer, he was given a termination letter signed Mr Thuo but he declined to pick and sign it because it contained a clause requiring him to undertake that he would not sue the company.
Lawyer John Ogada also told the court that after wrongfully terminating his client’s contract of employment, his employer Freight in Time Limited was also threatening to take Mr Aganda’s car which he had bought with a loan from the company.
Mr Aganda had paid half of the loan and was willing to continue repaying the balance of the loan. The lawyer applied for and obtained injunction orders which stopped the employer from taking the car
After submissions on his behalf by lawyer John Ogada the Court found that the company had failed to prove any valid reason that justified the dismissal of the claimant as required under sections 43 and 45(2) of the Employment Act,
With regard to procedure, the court said that before terminating services of an employee on grounds of misconduct, poor performance or physical incapacity, the employer shall explain to the employee the reason for the intended termination, and the employee is entitled to make his representations before termination is decided.
Justice Makau stated that in this case, the mandatory procedure was not followed and the respondent (employer company) has failed to discharge the burden of proving that fair procedure was followed as required under section 45 (2) (c) of the Employment Act. “I proceed to hold that the termination of the claimant’s contract of service was unfair”, the Judge added.
The judge further declared that the motor vehicle KBW 480M which the company was claiming actually belonged to Mr Aganda and restrained the company from taking it. The judge ordered that the balance of the loan be deducted from the award.