SAMUEL KONGA v LAVINGTON SECURITY COMPANY LTD [2013] KEELRC 404 (KLR)
The bottom line
#A Kenyan security guard unfairly dismissed without notice of reasons won Kshs 108,000, though unproven overtime and holiday claims failed.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant was unlawful
The termination was both procedurally and substantively unfair; the employer neither notified the Claimant of the reasons nor proved their validity, having failed to appear.
Section 41 obliges the employer to notify the employee of reasons for termination on grounds of misconduct, poor performance or incapacity and to hear explanations. Section 43 obliges the employer to prove reasons, and section 45 requires them to be valid and fair. With only the Claimant's sworn testimony before it and no response from the Respondent, the court found no notification was given and no reasons proved. Section 10(7) was invoked as the Respondent failed to keep records or disprove the terms asserted.
What remedies flow from the unlawful termination
One month's salary in lieu of notice (Kshs 6,000), payment in lieu of five years' untaken leave (Kshs 30,000) and maximum twelve months' compensation (Kshs 72,000) were awarded; holidays, overtime, leave allowance and terminal benefits claims were refused.
Section 35(1)(c) entitled the Claimant to one month's notice or salary in lieu. Under section 28 the court assessed payment in lieu of untaken leave at five months' salary, the Respondent having failed to produce records on a lawful request from the Labour Office. Because the Claimant was a lay person with a general prayer, and section 12(3)(v) and (viii) of the Industrial Court Act empowers appropriate awards, the maximum twelve months' compensation was granted. Special damages claims for holidays and overtime were unproved; terminal benefits were barred by section 35(5).
Legal principles established
#- Section 41 of the Employment Act embodies the natural justice requirement that an employer must notify an employee of the reasons for termination and consider explanations, i.e. procedural fairness.
- Sections 43 and 45 of the Employment Act require the employer to prove valid and fair reasons for termination, i.e. substantive fairness.
- Where an employer fails to keep employment records or defend a claim, section 10(7) of the Employment Act shifts the burden and the Court may act on the employee's asserted terms of employment.
- As a court of both law and equity, the Industrial Court should grant an effective and appropriate remedy, including compensation under section 49(1)(c) even if not expressly pleaded, where the memorandum of claim includes a general prayer.
Court orders
#- 1.Award of one month salary in lieu of notice of Kshs 6,000
- 2.Award of payment in lieu of 5 years leave of Kshs 30,000
- 3.Award of 12 months compensation for unfair termination of Kshs 72,000
- 4.Total award of Kshs 108,000 to the Claimant
- 5.No order as to costs
- Jurisdiction invoked
- Industrial Court Act, section 12(3)(v) and (viii)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAMUEL KONGA v LAVINGTON SECURITY COMPANY LTD [2013] KEELRC 404 (KLR)", Case Analysis (2013). Cause (Memorandum of Claim filed 7 April 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/404/eng@2013-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.