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ELRCAllowedCause No 569 of 2010· [2013] KEELRC 107 (KLR)

Azulu Wasua Adeba v Inter Security Services Limited [2013] KEELRC 107 (KLR)

Industrial Court of Kenya
3 October 2013
DMD.K.N. Marete
1,461 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from February 2003 until his summary dismissal on 22nd October 2007, claimed terminal dues of Ksh.152,002.40 comprising one month's salary in lieu of notice, statutory service pay at 18 days per completed year over four years, untaken leave pay for 2005-2007, and twelve months' salary as compensation for unfair termination. The respondent admitted the employment but asserted a lawful summary dismissal for insubordination and abusive language towards a deployment officer. The claimant (CW1) testified that he was not assigned duties, wrote to the respondent and his union, and received a dismissal letter only after union intervention; he denied prior disciplinary issues. DW1 for the respondent could not confirm the claimant was served with written warnings or given a chance to defend himself, and conceded the inquiry letter was prepared after the dismissal. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Holding that the respondent failed to adduce evidence of the alleged insubordination and that no charges, hearing or verdict preceded the dismissal, the court found the termination substantively and procedurally unfair, wrongful and unlawful. It awarded the full claimed package of Ksh.152,002.40 and ordered the respondent to bear the costs of the cause. Judgment was dated, delivered and signed on 3rd October 2013 by D.K.N. Marete, Judge. The record contains several internal date inconsistencies noted as data-quality flags.

Key legal issues

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01

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

The termination was unfair, wrongful and unlawful.

Reasoning

The dismissal letter dated 22nd October 2007 cited insubordination, but the respondent led no evidence of the alleged misconduct. The claimant was neither issued charges nor notices to respond, was not heard or represented at any disciplinary process, and no verdict was reached. The inquiry letter was prepared after the dismissal. The process was therefore substantively and procedurally flawed.

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02

Whether the claimant is entitled to the relief sought

Holding

Yes; the claimant was awarded his terminal dues totalling Ksh.152,002.40 including twelve months' salary as compensation for unfair termination.

Reasoning

Having found the dismissal unfair, the court awarded notice pay of Ksh.8,261, statutory service pay of Ksh.19,826.40 computed at 18 days' salary per completed year over four years, leave pay for 2005-2007 of Ksh.24,783, and maximum compensation of twelve months' salary of Ksh.99,132, together with costs against the respondent.

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Legal principles established

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  • An employer alleging summary dismissal for insubordination must adduce evidence of the misconduct; mere assertions in a dismissal letter are insufficient.
  • Termination without charges, notice and a hearing lacks substantive and procedural fairness and is unlawful.
  • A claimant unfairly terminated is entitled to notice pay, statutory service pay, untaken leave pay and up to twelve months' salary as compensation.

Court orders

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  1. 1.One month's salary in lieu of notice of Ksh.8,261.00
  2. 2.Statutory service pay for each completed year of service at 18 days' salary per year (18/30 x 8,261 x 4) of Ksh.19,826.40
  3. 3.Payment in lieu of untaken and unpaid leave for 3 years (2005, 2006, 2007) of Ksh.24,783.00
  4. 4.Compensation for unlawful/wrongful and unfair termination calculated at twelve months' salary (12 x 8,261) of Ksh.99,132.00
  5. 5.Total award of Ksh.152,002.40 to the claimant
  6. 6.Costs of the cause to be borne by the respondent
Jurisdiction invoked
Original jurisdiction of the Industrial Court over a dispute between an employer and employee (memorandum of claim filed under the court's employment jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Azulu Wasua Adeba v Inter Security Services Limited [2013] KEELRC 107 (KLR)", Case Analysis (2013). Cause No 569 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/107/eng@2013-10-03

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