Court of Appeal overturns Sh4.4m award to ex-CMC Motors employee

CMC Motors Group got a reprieve after the Court of Appeal set aside a decision which ordered it to pay its former employee Sh4.4 million for unfair termination of employment.

The Court of Appeal set aside the decision by the Employment and Labour Relations Court (ELRC) in favour of Mr Yasser Said saying that he was lawfully and procedurally dismissed.

It further ruled that having found that the termination of Mr Said’s employment was lawful and procedural, the award of Sh4.4 million as compensation for unfair sacking was unjustifiable.

“We arrive at the inescapable conclusion that the judge (ELRC) erred in finding and holding that the respondent’s termination was unfair,” ruled the Court of Appeal.

Mr Said, the court heard, was appointed to the position of Ford Brand Manager in April 2018 before he was transferred to the company’s Mombasa branch as the regional manager in January 2020.

The appellate court noted that in the appeal, both parties agreed that the reasons for the respondent’s (Mr Said) termination of employment was because of his alleged misreporting of profits, pre-reporting and misadvise to the business (when he was Ford Brand Manager).

“We have looked at the record and are not persuaded that the respondent can absolve himself from blame by stating that his actions were precipitated by the fact that he did not receive prior training,” ruled the Court of Appeal.

It also noted that in his response by email, the respondent admitted variances as outlined in a show cause letter but primarily blamed his lack of training on the Ford System as the reason behind misreporting.

The Court of Appeal bench comprising Justices Agnes Murgor, Kibaya Laibuta and Grace Ngenye-Macharia noted that Mr Said presented himself as a well-qualified, diligent and capable person in the conduct of his duties and responsibilities.

“There is no doubt he had the expertise, knowledge and know-how in in the operations of entities which were and still are, the business of buying and selling motor vehicles,” ruled the Court of Appeal.

It further noted that it was unfathomable that after holding senior positions while working in Dubai with globally reputable motor vehicle companies, he was unable to grasp the workings of CMC Motors Group within a period of nine months.

The Court of Appeal noted that Mr Said was to report to the sales and marketing director (as a brand manager), an indication that he was not to make autonomous, unilateral decisions at his own behest but rather in consultation with others as and when required.

“Even assuming that he felt inadequate to do his job, there is entirely no evidence that he requested for guidance or additional training, and the appellant (CMC Motors Group) refused to accede to such request,” ruled the appellate court.

The Court of Appeal further ruled that evidence on record disclosed that misreporting of profits, pre-reporting and misadvise to the business had nothing to do with training or lack of it.

“All the respondent was required to do was to honestly report on the number of motor vehicles sold, he could have done this in consultation with the sales team or the sales and marketing director to whom he reported in the event of uncertainty,” ruled the appellate court.

The Court of Appeal noted that failure to have credentials on the grounds that they were held by a previous manager is a mere excuse which did not call for him to misreport or overstate profits or sales for his own benefit.

It further noted that the respondent’s actions undermined and were prejudicial to the appellant’s motor vehicle business.

In its appeal, CMC Motors Group argued that the ELRC erred in law and fact by concluding that the procedure for termination of employment was fair, but that the reasons for the termination were unfair.

It also argued that the ELRC erred by concluding that the respondent was not adequately trained and as such his misreporting of sales and undue incentives for the company were justified.

The company further argued that it would be improper for a court to expect an employer to conduct a near forensic examination on facts placed before it as would be in a criminal trial.

CMC Motors Group also argued that the ELRC overlooked the fact that the respondent admitted culpability and that all that was required was for the employee to be subjected to procedural fairness as required by statute.

Mr Said argued that the appellant did not discharge its burden of proof to justify the grounds for termination.

Mr Said also contended that he was dependent on a former brand manager to assist him in understanding the Ford System, but she frustrated his efforts forcing him to seek assistance from other staff to learn how to operate the system.