The Employment and Labour Relations Court has found oil marketer Hass Petroleum Kenya Limited guilty of unfairly dismissing a former manager it accused of allegedly abetting the theft of company property.
Wolfgang Tolle, who served as an assistant depot at the company, was dismissed following the theft of a truck on the night of November 23, 2017.
His tribulations began on December 8, 2017, when he was suspended from work to allow a probe into the matter. Investigations by the company found that there were lapses in the operation procedures authorised by Mr Tolle, resulting in theft.
Their report claimed that the lapses included loading of stocks past the stipulated time, authorising parking inventory overnight, authorising parking of a vehicle at a venue not designated by the employer, and failure to enable enhanced features of the tracker, to ensure real-time notifications.
The manager was fired on December 20, 2017, on the basis of the investigation report, prompting a court fight that ended in Mr Tolle’s favour.
Employment and Labour Relations Court Judge James Rika ruled that the ex-manager was unfairly dismissed without a fair hearing. “There is no evidence that the respondent was alive to its disciplinary hearing and pre-termination requirements, in the process leading to termination of the Claimant’s contract. There is no evidence of a disciplinary hearing, as contemplated by Section 41 and 45 of the Employment Act,” the Judge said.
“There is no evidence of a pre-termination interview, a procedure that is self-imposed by the Respondent. There was no letter to show cause, issued to the Claimant” Justice Rika added.
Court filings showed that Hass alleged that an email sent on December 20, 2017, by one Justin Nyaga Njiru, to one Abdirizak Sheikh, constituted minutes of the hearing.
The e-mail simply states that a disciplinary hearing meeting was held. It then goes on to make reference to the committee’s findings and resolutions. It is stated that the committee recommended the immediate termination of Mr Tolle’s contract on account of negligence and questionable integrity.
“The email can hardly pass for minutes of a disciplinary hearing. There is no record of specific charges read out to the Claimant. There is no record of who composed the disciplinary committee, what evidence was received, whether there were witnesses and documents in the proceedings” Justice Rika said.
“The Claimant is not shown to have said anything. Indeed, no one is shown to have said anything. There is no record of any invitation to a disciplinary hearing communicated to the Claimant. He was not advised about his right to be accompanied by a colleague, or trade union representative, at the hearing. This appears to have been an e-mail generated merely to fill a gap, on the lack of a disciplinary hearing.” The Judge added and ordered Hass to compensate Mr Tolle for unfair termination, at Sh 1,517,625.
