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ELRCPartially AllowedCause 1998 of 2011· [2012] KEELRC 17 (KLR)

DONALD ODEKE V FIDELITY SECURITY LIMITED [2012] KEELRC 17 (KLR)

Industrial Court of Kenya
12 November 2012
LNLinnet Ndolo
974 words in judgment
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The bottom line

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A Kenyan court ruled a security guard's firing unfair because his employer never gave him a chance to be heard before dismissal.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Security Guard from 1st September 1998 and later deployed as a Messenger, was terminated by letter dated 17th November 2010 on grounds of poor performance, insulting a senior manager, and being violent and unruly. He sued for unlawful and unfair termination and unpaid terminal benefits, seeking one month's salary in lieu of notice, 12 months' compensation, and aggravated damages for alleged discrimination on the basis of his HIV positive status. The Respondent, though served, filed no Reply and did not attend, so the matter proceeded ex parte on 17th October 2012. Relying on Sections 41, 43(1) and 45 of the Employment Act, 2007, and following Isaac Matongo Mogoi v Municipal Council of Nakuru, the court held that an employee must be heard before termination and that termination without a hearing is unfair regardless of the offence alleged. Finding no evidence the Claimant was given an opportunity to defend himself, the court declared the termination unfair and awarded compensation equivalent to 11 months' gross salary of Kshs. 8,652. The court discounted the Kshs. 49,183 already paid and Kshs. 1,129 overtime, and refused notice pay because one month's notice had been served. The aggravated damages claim for HIV-based discrimination was dismissed for want of proof, no medical reports or evidence of discriminatory motive having been produced. The Claimant was awarded costs of the suit. Judgment delivered at Nairobi on 12th November 2012 by Linnet Ndolo, Judge.

Key legal issues

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01

Unfair termination - procedural fairness

Holding

The termination was unfair because the Claimant was never given an opportunity to defend himself against the allegations

Reasoning

Section 41 requires an employer to explain the reasons for contemplated termination and to hear the employee's representations before terminating for misconduct or poor performance. Section 43(1) places the burden of proving the reason for termination on the employer. There was no evidence the Claimant was heard, and the Respondent filed no Reply and did not attend. Termination without a hearing is unfair regardless of the offence alleged.

p. 2
02

Compensation for unfair termination

Holding

The Claimant was awarded the equivalent of 11 months' gross salary

Reasoning

Under Section 45 the termination was unfair, warranting compensation. The court awarded 11 of the 12 months' salary sought, discounting the Kshs. 49,183 already paid and the Kshs. 1,129 overtime since overtime could only be earned while in actual employment, and refused notice pay as one month's notice was served.

p. 2
03

Alleged discrimination based on HIV status

Holding

The claim for aggravated damages for discrimination failed for want of proof

Reasoning

The Claimant alleged the real reason for termination was his HIV positive status and sought aggravated damages, but produced no medical reports confirming his status and adduced no clear evidence that the termination was actuated by his HIV status. The allegation therefore remained unproved and the claim was dismissed.

p. 3

Legal principles established

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  • An employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair
  • Termination without hearing the employee is unfair irrespective of the offence alleged

Court orders

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  1. 1.Award of the equivalent of 11 months' salary based on the last gross salary of Kshs. 8,652 for unfair termination
  2. 2.Discounting the sum of Kshs. 1,129 for overtime from the award
  3. 3.Discounting the sum of Kshs. 49,183 already paid to the Claimant by the Respondent from the award
  4. 4.Refusal of one month's salary in lieu of notice as the termination letter indicated one month's notice was served
  5. 5.Dismissal of the claim for aggravated damages for discrimination on the basis of HIV status
  6. 6.The Claimant to have the costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41(1) and (2)

Cases cited (1)

  • Isaac Matongo Mogoi Vs. Municipal Council of Nakuru and Another
    HC Misc Case No. 810 of 2005
Jurisdiction invoked
Employment Act, 2007 (ss. 41, 43(1), 45) - unfair termination claim under the Industrial Court's employment jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "DONALD ODEKE V FIDELITY SECURITY LIMITED [2012] KEELRC 17 (KLR)", Case Analysis (2012). Cause 1998 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/17/eng@2012-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.