A landmark ruling at the Court of Appeal has sent a strong warning to job seekers and employees, emphasising that accepting a position without the necessary skills or competence can have serious consequences.
The court has overturned a Sh4.4 million compensation award granted to a former CMC Motors Group brand manager, Yasser Said Swaleh, whose employment was terminated for misreporting sales, resulting in the business losing incentives worth $48,000 (Sh6.2 million).
Mr Swaleh attributed his troubles to a lack of proper training, arguing that he had no training to handle the employer’s system. However, the appellate court dismissed his claims, noting that it is common ground that, by the time a person applies for employment, they do not do so blindly.
The court observed that an individual who considers themselves competent enough to apply for an advertised position is, by implication, aware that they are capable of executing the tasks outlined.
“That is why advertised jobs are accompanied by job descriptions, which are a formal account of employees’ responsibilities. Therefore, for all intents and purposes, if Mr Swaleh felt that he did not suit the job description for the role offered by the firm, he had no business applying for it,” the court stated.
According to the judges, Mr Swaleh could not accept the position and, only after discrepancies were discovered, claimed that he had not been properly trained to handle the employer’s system.
“We are, in the circumstances, unable to accept Mr Swaleh’s assertion that he was not trained, and that this was the reason for the variances in the sales,” the court held.
In addition, the court noted that its analysis of the evidence on record showed that the misreporting of profits, pre-reporting, and misadvice to the business had nothing to do with training, or lack thereof.
The three judges stated that all Mr Swaleh was required to do was to honestly report the number of motor vehicles sold, something he could have done in consultation with the sales teams, or by seeking guidance from the Sales and Marketing Director to whom he reported in cases of uncertainty.
CMC Motors Group's showroom on Lusaka Road, Industrial Area.
Photo credit: Dennis Onsongo | Nation Media Group
“The failure to have the so-called credentials on the grounds that they were held by the previous manager is a mere excuse, which did not justify misreporting or overstating profits or sales for his own benefit. In effect, his actions undermined and were prejudicial to the company’s motor vehicle business,” the court said.
For these reasons, the appellate court ruled that the Employment and Labour Relations Court erred in finding that the reasons for his termination were unfair and in awarding him damages.
The court concluded that Mr Swaleh was lawfully and procedurally dismissed, and that he had been paid all his dues upon termination.
“As concerns the award of Sh4.4 million, as compensation for unfair termination, equivalent to eight months’ salary, having found as we have that his termination was lawful and procedural, the award was unjustifiable in the circumstances and, for the avoidance of doubt, we hereby set it aside,” the court held.
Mr Swaleh sued the firm in 2020, stating that it had employed him as a Brand Manager for Ford in 2018.
He explained that in January 2020, he was transferred to the Mombasa branch as Regional Manager. However, a day earlier, on January 30, 2020, he was served with a show-cause letter requiring him to explain why disciplinary action should not be taken against him for gross misconduct.
He was subsequently invited to disciplinary proceedings, where he defended himself against the allegations.
“Despite my defence, I was issued with a termination letter,” he lamented. He appealed the decision before the Disciplinary Committee, but the appeal was dismissed, thereby affirming his termination.
In his claim, Mr Swaleh maintained that he had served the company with dedication and diligence, with little or no supervision, and argued that his dismissal was wrongful, unlawful, without justifiable cause, and in violation of labour laws.
He therefore sought several remedies, including a declaration that the termination was unlawful, reinstatement to his position, and compensation equivalent to 12 months’ salary amounting to Sh6 million.
Disciplinary meeting minutes
During the hearing, he testified that he had taken over from his predecessor without proper guidance, stating that she did not guide him or share information on how the work was to be done.
He further claimed that the disciplinary process was a witch hunt, based on allegations that he had misreported the sale of some units for personal gain, pre-reported sales, and misled the finance team.
He also contended that the process was unfair, asserting that the decision to dismiss him was predetermined and that he was not provided with the disciplinary meeting minutes.
CMC Motors Group opposed Mr Swaleh’s claim, maintaining that both the process and grounds for his dismissal were lawful and justified.
The company confirmed issuing him a show cause letter, to which he responded, though not comprehensively, adding that it accorded him a fair hearing.
“He was invited to disciplinary proceedings, given an opportunity to defend himself, and participated in the process,” the firm said.
Following the hearing, the Disciplinary Committee resolved to summarily dismiss him for negligence. The allegations included deliberately misreporting sales resulting in a business loss of $48,000, fictitiously reporting 18 units and benefiting from an award of $ 2,160, and misadvising the business on incentives, thus resulting in an overstated expected income amounting to $145,100.
He was also accused of reversing fourteen units in an attempt to cover his tracks from scrutiny. The company further noted that, during the disciplinary hearing, he admitted receiving $2,160 (278,640), an incentive and expressed willingness to refund it.
Through its HR Manager, the company emphasised that Mr Swaleh had been properly trained, including undergoing training in South Africa, and had demonstrated sufficient competence, even training others.
It concluded that his dismissal resulted from misreporting sales and obtaining undue incentives, amounting to a breach of his employment contract.
The Employment and Labour Relations Court agreed with Mr Swaleh and held that the termination was substantively unfair, awarding him Sh4.4 million.
CMC Motors Group challenged the trial court’s decision at the Court of Appeal, arguing that the judge erred in both law and fact in finding the termination substantively unfair despite acknowledging that the procedure was fair.
The company contended that the court improperly shifted the burden of proof by questioning the absence of a witness statement from the individual who trained Mr Swaleh, thereby demanding a higher standard than required. It further argued that the judge wrongly concluded that Mr Swaleh was inadequately trained and used this to justify his misconduct, including misreporting sales and obtaining undue incentives.
“The court ignored crucial evidence showing Mr Swaleh had been trained, including by his predecessor, and wrongly attributed sole responsibility for training to that predecessor,” the firm said, seeking to have the judgment set aside.
After reviewing the record, the judges stated that they were not persuaded that Mr Swaleh could absolve himself from blame by stating that his actions were precipitated by a lack of prior training.
While acknowledging that he admitted the discrepancies, the court noted that he primarily blamed his lack of adequate training on the Ford system, claiming he had to rely on colleagues and that, even months into his employment, another officer operated the system.
However, the court rejected this explanation, clarifying that requesting to be registered into the system is not synonymous with requesting training, particularly as this request came nearly nine months after his appointment.
The judges emphasised Mr Swaleh’s professional background, observing that he had presented himself as a well-qualified, diligent, and capable individual.
They found it unfathomable that someone with senior experience, including international exposure, could fail to grasp the system within that period.
The court further noted that he was required to work in consultation with his superiors and that there was no evidence that he requested guidance or additional training, ultimately finding his defence untenable.
