The court has faulted multinational tea producer Ekaterra Tea Kenya over what it described as a humiliating and physically intrusive search of a female employee accused of stealing a packet of milk, ruling that her dismissal after 26 years of service was unfair.
The Employment and Labour Relations Court said the company failed to prove that Ms BW, a quality analysis clerk at Limuru Tea Estate, had stolen company property. Her name is being withheld for legal reasons.
In its ruling, the court said the allegations against the employee were unsupported by evidence and criticised the manner in which the investigation was conducted.
“The court notes that the respondent… subjected the grievant to a search… an act the court finds discriminatory and degrading,” the judge said.
Ekaterra Tea Kenya Plc, formerly owned by consumer goods giant Unilever, is part of the global Lipton Teas and Infusions group, which is controlled by private equity firm CVC Capital Partners.
Ms BW joined the tea estate in 1996 as a general worker and rose through the ranks to become a quality analysis clerk. By the time of her dismissal in 2023, she had served the company for 26 years without any previous disciplinary record.
The dispute arose from an incident on February 13, 2023.
Ms BW told the court that she had purchased a packet of milk while running personal errands before reporting to work and intended to consume it later during her shift.
She worked in the quality analysis room, where milk was routinely used for tea tasting and sample preparation.
According to court records, an assistant production manager questioned whether the packet of milk belonged to the company. Ms BW denied the allegation and maintained that the milk was hers.
She said a shift manager subjected her to a search of her private parts to determine whether she had concealed the packet of milk, an act the court later found discriminatory and degrading.
More than four months later, on June 23, 2023, the company issued her with a show-cause letter accusing her of breaching its Code of Business Principles.
She responded three days later, denying any wrongdoing. A disciplinary hearing followed on June 30, which she attended in the company of a shop steward.
Evidence test
The Kenya Plantation and Agricultural Workers Union sued on her behalf, arguing that the company had failed to establish that the milk originated from its stocks.
The union said no witness testified to any theft during the disciplinary proceedings. It also argued that no batch register, photographs or inventory records were produced to support the allegation.
Ekaterra defended its decision, saying managers reasonably believed Ms BW had attempted to steal company property in breach of workplace rules.
The company’s investigator testified that milk had gone missing on previous occasions. However, he acknowledged that no register linking the disputed packet to company supplies had been produced in court.
The investigator also did not identify the person alleged to have been stealing the milk. He further testified that employees were not required to declare food brought from outside under any policy presented during the proceedings.
‘The reasons for termination are not verified. There is no concrete proof that the packet of milk was stolen,’ the court said.
The judge added that the company had acted disproportionately and in breach of due process.
The court further held that even if the employee had committed a minor infraction, dismissal would still have been excessive punishment.
‘And even if she stole one packet of milk to drink, she could have been warned… since that was a misdemeanor and not an act of gross misconduct,’ the court said.
The court declined to reinstate Ms BW, citing the breakdown of the employment relationship.
Instead, it awarded her two months’ salary in lieu of notice amounting to Sh47,400 and 10 months’ compensation for unfair termination worth Sh237,000.
The court also ordered the company to pay gratuity in line with the collective bargaining agreement.
‘The court is of the considered view that the grievant was unlawfully and unfairly terminated, the reasons advanced for her dismissal being untenable,’ the judge said.