Jairus Makori v Lavington Security [2013] KEELRC 11 (KLR)
The bottom line
#Kenya's Employment Court ruled a security guard wasn't fired — he had 30 days to return to work or forfeit most claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the employment relationship was terminated by the Respondent
The Court found no evidence of termination; the Respondent did not issue a termination letter and was willing to continue employing the Claimant, who did not pray for reinstatement
The Respondent's witnesses testified the Claimant was asked to attend a refresher course, declined and was declared a deserter; no termination letter was issued and Mr. Rono testified the Respondent would continue employing him if he returned. The Claimant did not express a desire to return or pray for reinstatement. The Court therefore could not conclude the contract was terminated, and instead gave the Claimant 30 days to report back, with deemed termination at his own initiative if he failed.
Whether the Claimant was promoted to Guard-In-Charge and entitled to the salary differential
No promotion was proved; the claim for Kshs. 36,300 underpayment was rejected
The Claimant had no document showing his appointment as Guard-In-Charge; there was no award of stars or promotion letter, and the promotion procedure required appraisal, salary increase and a letter. He also never demanded the differential from the Respondent during the period he claimed to have acted. The Human Resource Assistant was not even aware of the alleged promotion.
Whether the refresher course requirement was legitimate
The requirement was legitimate in principle but the Respondent trivialized it by directing a 9-year employee to an unstructured, unpaid course with no trainer
The Court held all employees need continuous job training, and the requirement should not be resisted by employees. However, the Respondent's demand that the Claimant attend a refresher course at Nairobi School after 9 years, with no trainer, programme or pay, appeared designed to frustrate and provoke him rather than genuinely enhance capacity.
Entitlement to terminal dues in the alternative
If the Claimant opts not to return within 30 days, he is deemed to have terminated the contract on 31st December 2010 and is entitled to uniform refund, annual leave pay and certificate of service, but must pay one month's salary in lieu of notice
The Court awarded Kshs. 6,000 uniform refund (the Respondent's witness conceded this would be paid on clearance), annual leave pay for nine years at 21 days per year (Kshs. 45,069, with the total terminal benefit computed at Kshs. 44,869), and the certificate of service, while requiring the Claimant to pay the equivalent of one month's notice because the deemed termination was at his initiative.
Legal principles established
#- Refresher course is a legitimate training requirement, not a disciplinary sanction, and must be structured, paid and purposeful
- Service pay is not payable to an employee subscribed to the N.S.S.F
- An employee who declines to return to work when the employer is willing to continue employing him is deemed to have terminated the contract at his own initiative
Court orders
#- 1.The Claimant shall report back to work within 30 days of the Award
- 2.The Respondent may place the Claimant on a properly structured refresher course before, during or after the Claimant has reported back to work
- 3.The days the Claimant has been out of employment shall be treated as years of unpaid leave
- 4.Alternatively, if the Claimant does not report back within 30 days, he shall be deemed to have terminated his contract of employment from 31st December 2010, shall pay the Respondent the equivalent of 1 month salary in lieu of notice at Kshs. 6,200, and shall be paid by the Respondent Kshs. 6,000 uniform refund and annual leave pay for nine years based on 21 days' salary per year (total Kshs. 45,069), being in total Kshs. 44,869 terminal benefits
- 5.The Claimant to be supplied with the certificate of service
- 6.No order on the costs
- Jurisdiction invoked
- Dispute referred under the Industrial Court's employment and labour relations jurisdiction; issue in dispute stated as wrongful termination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jairus Makori v Lavington Security [2013] KEELRC 11 (KLR)", Case Analysis (2013). Cause Number 1294 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/11/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.