- A former personal assistant to a general manager was sacked for attempting take away company food items without authorisation
- Lilian Muriithi, who earned KSh 70,000 monthly at Vipingo Ridge Limited, was dismissed from her job, and she sued her former employer
- This was after security found items including 2kg of Sunrise rice, two cartons of milk, and juice in her car at the company gate without a gate pass
Elijah Ntongai, an editor at TUKO.co.ke, has over four years of financial, business, and technology research and reporting experience, providing insights into Kenyan, African, and global trends.
A Kenyan woman’s six-year career at a Kilifi-based company ended after she was dismissed over food items found in her car.
Source: Getty Images
The Employment and Labour Relations Court allowed an appeal by Vipingo Ridge Limited.
After listening to the appeal, Justice Mbarũ set aside a lower court’s judgment that had awarded Lilian Muriithi KSh 420,000 for unfair termination.
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The judge found that the company had a genuine belief, based on its investigation, that the employee was involved in misconduct related to theft.
The court awarded her only KSh 39,666 for 17 days worked in February 2020 before her formal dismissal letter was issued, and ordered each party to bear its own legal costs.
Why was the employee dismissed?
In 2015, the Vipingo Ridge Limited employed the respondent as a personal assistant to the general manager at a salary of KSh 55,000 per month, which increased to KSh 70,000 per month.
The case stemmed from an incident on January 8, 2020, when the company security officers, acting on a tip-off, stopped and searched Lilian Muriithi’s vehicle (KCS 496S) as she attempted to exit the Vipingo Ridge premises.
According to the court documents, the search uncovered several items in her possession, including 2 kg of Sunrise rice, 2 cartons of KCC Gold Milk, 2 packets of Pink ‘n’ Peel juice, and other personal belongings.
Crucially, she did not have a gate pass authorising the removal of these goods from the premises.
When questioned, she claimed the items were given to her by Mary Syokau from a related company, Superior Homes, on instructions from Gerald Kimongo. However, Gerald denied giving any such instructions.
Following an investigation, the company issued a show-cause letter, conducted a disciplinary hearing on January 30, 2020, and subsequently dismissed her via a letter dated February 17, 2020, for gross misconduct.
What was the reason for the company’s appeal?
Vipingo Ridge Limited appealed the trial magistrate’s judgment, which had awarded the employee five months’ compensation (KSh 350,000) and one month’s salary in lieu of notice (KSh 70,000).
The company’s core argument was that the trial court wrongly elevated the standard of proof for an internal disciplinary process to that of a criminal trial.
The employer contended that it only needed to prove it had a genuine and reasonable belief in the misconduct, not proof “beyond a reasonable doubt.”
The appellant argued that the employee’s own written response on January 26, 2020, was a critical admission.
In it, she apologised for not having a gate pass and confirmed that security had withheld the rice, milk, and juice from her.
“I ought to have had a gate pass for all these times, but I didn’t. However, the security personnel called to confirm all the above and came back and asked me to leave behind the group items 2, 3, and 4. I was allowed to proceed with item 1. I take this early opportunity to apologise for the misdeed and will, in future, make sure that, for anything I have, a duly signed gate pass will be in my possession whenever I exit the gate…” read the respodents admission.
Additionally, the company said it had traced the items to its stores and Gerald had denied authorising the release.
The company asserted that the admission, coupled with its tracing and Gerald’s denial, constituted valid grounds for a genuine belief in theft-related misconduct, a fundamental breach of contract justifying summary dismissal under Section 44 of the Employment Act.
The company also challenged the procedural fairness ruling by the lower court, stating that it had fully complied with Section 41 by issuing notices, holding a hearing where she was represented, and allowing her to question witnesses.
What did the court decide?
After reevaluating the evidence, Justice Mbarũ sided with the employer on the key legal principle.
The judge emphasised that for termination to be substantively fair, the law only requires an employer to prove the reasons it “genuinely believed to exist”.
The court found that the employer met this threshold and did not have to prove beyond any doubt that the employee had stolen the items.
The employee’s admission of possessing company items without a gate pass, the contradictory explanations about their source, and the company’s ability to trace the goods to its inventory created a reasonable basis for Vipingo Ridge to believe gross misconduct had occurred.
“Theft in employment is a fundamental breach of the employment contract. It justified summary dismissal,” the judgment stated.
The judge ruled that the trial magistrate erred in faulting the timing of the investigation report’s disclosure, noting the employee had the chance to challenge witnesses during the hearing.
The court allowed the company’s appeal in nearly all respects, set aside the awards for compensation of KSh 350,000 and notice pay of KSh 70,000, and upheld the dismissal as lawful and fair.
The judge awarded the Muriithi KSh 39,666 for 17 days she worked in February 2020, before her formal dismissal on February 17.
Source: UGC
Driver fined KSh 2.6m in case against employer
In other news, the Employment Court delivered a complex ruling ordering a driver to pay his former employer KSh 2.6 million for abandoning a company truck and causing massive losses, even though it found his dismissal was procedurally unfair.
The court awarded Ishmael Mcharo KSh 764,308 for unfair termination but upheld a counterclaim of KSh 2.67 million for negligence and unreturned vehicle accessories.
The net result was a liability of nearly KSh 1.9 million for the driver.
The ruling underscored a principle that employees remain financially liable for gross negligence concerning company property, even if the dismissal process itself was flawed.
Source: TUKO.co.ke
