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ELRCPartially AllowedCause 1952 of 2011· [2013] KEELRC 356 (KLR)

MOSES INDIRE MUNZWERE V C AND A SECURITY SERVICES [2013] KEELRC 356 (KLR)

Industrial Court of Kenya
23 April 2013
MOMaureen Onyango
2,485 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard was unfairly fired without a hearing and awarded him over Kshs. 283,000, showing employers must follow proper procedure and pay legal minimum wages.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from 1st February 2009 at Shs.4,000 per month without a written appointment letter, claimed he was wrongfully terminated on 19th February 2011 and sought notice pay, accrued leave, uniform refund, rest days, severance pay, 12 months' compensation and refund of SACCO contributions. The respondent admitted employing him but alleged he deserted duty and that the dispute had been settled before a Labour Officer, who it said was paid Kshs.7,400; it also challenged the court's jurisdiction. The court found as uncontested that the claimant worked until 19th February 2011, never took leave or rest days, worked at least 12 hours daily, and was sent away when he reported back. It held the termination unfair both procedurally and substantively because the claimant was never given a hearing under Section 41 of the Employment Act. Applying Section 10(7) of the Employment Act and Section 48 of the Labour Institutions Act, the court read in the statutory minimum wage for night watchmen plus 15% house allowance. It awarded one month's notice pay, leave for 2 years, uniform refund, rest days pay, service pay (refusing severance as the claimant was not declared redundant), 3 months' salary as compensation instead of 12 months given the short service, SACCO refund, and additionally overtime, public holiday pay and underpayments established on the evidence, totalling Kshs.283,749.88 payable within 30 days with interest thereafter. There were no orders for costs.

Key legal issues

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01

Whether termination was unfair

Holding

Termination was unfair both procedurally and substantively because the Claimant was never given a hearing under Section 41 of the Employment Act

Reasoning

It was uncontested that the Claimant absented himself on 19 February 2011 and was sent away when he reported back. No hearing was afforded him before termination. Section 41 of the Employment Act mandates a hearing before termination, and failure to accord it renders the dismissal procedurally unfair; the circumstances also rendered it substantively unfair.

p. 2
02

Applicable rate of pay for computing dues

Holding

Statutory minimum wage for night watchmen plus 15% house allowance applied, not the contract rate

Reasoning

Both parties' suggested rates (Shs.4,000 and Shs.4,500) were below the statutory minimum. Section 10(7) of the Employment Act places the burden of proving terms of employment on the employer who fails to produce records, and Section 48(1) of the Labour Institutions Act mandates reading in the statutory minimum rate where there is underpayment.

p. 3
03

Entitlement to compensation under Section 49(1)(c)

Holding

Compensation awarded at 3 months' gross salary rather than the 12 months sought, given the short 2-year length of service

Reasoning

Having found unfair dismissal, the Claimant was entitled to compensation under Section 49(1)(c) of the Employment Act, which caps compensation at 12 months' gross salary. Considering the short service of two years, 12 months would be excessive; 3 months' salary was deemed reasonable in the circumstances.

p. 4
04

Overtime, public holidays and underpayments not specifically pleaded as prayers

Holding

Court awarded overtime, public holiday pay and underpayments notwithstanding they were not in the prayers, since the evidence established them

Reasoning

Although the Claimant did not pray for overtime and public holiday pay, testimony and the Respondent's own witness established that he worked 12 hours daily without rest days, public holidays or leave, and was paid below the statutory minimum. Section 48 of the Labour Institutions Act deems minimum statutory terms into inferior contracts, entitling him to overtime beyond 52 hours weekly, double pay on public holidays, and the computed underpayments.

p. 4

Legal principles established

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  • Termination without a hearing in terms of Section 41 of the Employment Act is unfair both procedurally and substantively
  • Where the employer fails to produce records of terms of employment, the burden of proof is on the employer and the court may rely on the employee's account and read in statutory minimum wages
  • Minimum statutory terms cannot be varied by agreement and replace inferior contractual terms
  • Severance pay is only payable upon declaration of redundancy; service pay under Section 35(5) and (6) is distinct

Court orders

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  1. 1.Payment of Kshs.8,651.45 as one month's salary in lieu of notice
  2. 2.Payment of Kshs.12,112.00 as payment in lieu of accrued leave for 2 years
  3. 3.Payment of Kshs.2,400 as uniform refund
  4. 4.Payment of Kshs.51,156.40 in lieu of rest days
  5. 5.Payment of Kshs.7,523 as service pay
  6. 6.Payment of Kshs.25,954.35 as compensation for unfair termination (3 months' gross salary)
  7. 7.Payment of Kshs.7,200 as refund of Firimbi SACCO contributions
  8. 8.Payment of Kshs.78,239.20 as overtime
  9. 9.Payment of Kshs.11,033.73 for public holidays worked
  10. 10.Payment of Kshs.79,479.75 as underpayments
  11. 11.Total award of Kshs.283,749.88 to be paid within 30 days failing which interest to accrue at Court rates from expiry of the 30 days until payment in full
  12. 12.No orders for costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 49(1)(a)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 10(7)
  • Employment ActSection 35(5) as read together with 35(6)
  • Labour Institutions ActSection 48(1)
  • Labour Institutions ActSection 48
  • Regulation of Wages and Conditions (General Order) 2010statutory minimum wage for night watchmen
  • Protective Security (1998) Orderprescribed working hours per week
Jurisdiction invoked
Jurisdiction challenged by respondent (dispute said to have been settled by the Labour Officer); court exercised its jurisdiction under the Labour Institutions Act and Employment Act over the employment dispute

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, "MOSES INDIRE MUNZWERE V C AND A SECURITY SERVICES [2013] KEELRC 356 (KLR)", Case Analysis (2013). Cause 1952 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/356/eng@2013-04-23

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