Introduction

For an employment termination to be valid in law, it must be grounded on a fair and legitimate reason under the Employment Act 2007. Is institutional weakness an excuse for an employee’s negligence? Can it absolve an employee from employment obligations of trust and integrity? What about an absence of criminal charges? Do they render a termination obsolete? These questions were the bone of contention in this case.

Background

This case arose from an appeal of the decision of the Employment and Labour Relations Court (ELRC), which dismissed the appellant’s claim for unfair termination against the Nairobi Water and Sewerage Company Limited. The appellant had risen through the ranks from Clerical Officer II to Cashier Verification Supervisor, a position that involved collection, verification and banking of substantial sums of money.

While on duty sometime in 2013, the appellant collected 1.2 million shillings, which he failed to bank. His justification was that he paid it as an I.O.U to some individuals who had been sent by the Managing Director. Subsequent investigations revealed that the alleged authorization was forged, the recipients were strangers to the employer and that the money was neither properly accounted for in the records nor surrendered. The appellant was summarily dismissed after a disciplinary process.

He stated to the trial court that there was institutional inefficiencies in the employer’s cash management system in regards to payment of imprests and I.O.U’s using collected funds.

Main Issue for Determination

Whether the dismissal was grounded on a fair and valid reason within the meaning of the Employment Act 2007.

Analysis

The Court clarified the issue of the burden of proof in employment claims. It held that section 107 of the Evidence Act Cap 80, places a burden on one who alleges a fact to prove it. It equally cited section 47(5) of the Employment Act 2007, which places the initial prima facie burden of proof on the employee to prove that they were terminated unfairly. The burden thereafter shifts to the employer to prove that the termination was valid and that proper procedure was followed to warrant the termination.

The Court placed reliance on the appellant’s rank, experience and responsibilities, posing a critical question:

“Given the amount of money that was in question, given that the appellant did not personally know the persons he said he gave money to, and given that he did not seek to clarify with the Managing Director, did he exercise due care and attention, given his rank and experience?”

In answering the question, the court rejected the appellant’s contention on institutional failure and stated that it did not absolve him from responsibility to act prudently. The Court emphasized on the centrality of mutual confidence and trust in employment relationships, and especially, where funds are at stake.

In conclusion, the Court found that the appellant had acted negligently, short of the standard expected of an employee of his rank, experience and stature. The negligence occasioned a substantial financial loss. Even without any preferred criminal charges, the termination was proper. In any case, the standard of proof in termination is on a balance of probabilities and not beyond reasonable doubt.