Joho family firm to pay worker Sh961,000 in sacking row

The judge directed the company to compensate Ms Simbi Sh792,460 in 10 months’ gross salary, Sh79,246 as notice pay, and leave pay at Sh89,948.

The judge further directed the company to issue Ms Simbi with a certificate of service under Section 51 of the Employment Act.

In her decision, Justice Mbaru said that an employee does not terminate employment, and that the employer has the legal duty to end it and issue a written notice stating the reason.

Read: Court stops Joho family firm Sh5.9bn grain facility at port

“Even in a serious case such as alleged gross misconduct, the employer has the legal duty to take the employee through the due process before termination of employment.

“Leaving the employee at large does not aid the employer’s case. Instead, the employer is left exposed to claims,” ruled the judge.

The judge said Section 41(2) of the Employment Act requires the employer to issue notice and allow the employee to attend and make representations in the presence of another employee of her choice.

“Where the employer is unable to address these mandatory motions of the law, such matter must be addressed and demonstrated to the court,” said Justice Mbaru.

The court ruled that the response filed by the respondent (company) comprised mere denials and the witness called did not present any particulars that the claimant (Ms Simbi) was taken through due process before being forced out of office.

Justice Mbaru further noted that no notice terminating employment was issued or filed in court as required under the provisions of the Employment Act.

She further noted that the response (by the company) that Ms Simbi absconded duty, was insubordinate and failed to respond to the notices issued was left bare and that upon such allegations, Portside Freight Terminals Ltd did nothing to protect itself.

“No disciplinary proceedings were held, or the claimant invited to address even where the warning notice directed the claimant to address immediately and she failed to oblige, her continued employment was not addressed with finality,” said Justice Mbaru.

In her suit papers, Ms Simbi told the court that she was employed by the company in December 2009 as the stock control clerk and was on July 1, 2010, appointed as the assistant documentation supervisor before being appointed the ISO management representative.

Ms Simbi told the court that upon being employed by the respondent, she worked diligently and rose to the position of documentation executive.

Ms Simbi claimed that senior officers at the company directed her to leave employment without notice, hearing, or reasonable cause leading to unfair termination of employment and that there was no payment of terminal dues.

Portside Freight Terminals Ltd, in its response, denied the allegations against it but said that the respondent was employed as a stock clerk.

The company said that there was no unfair termination as alleged, and the claimant was not sent away from her office, and it wanted the case dismissed.
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