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ELRCPartially AllowedCause (Memorandum of Claim filed 7 April 2011)· [2013] KEELRC 404 (KLR)

SAMUEL KONGA v LAVINGTON SECURITY COMPANY LTD [2013] KEELRC 404 (KLR)

Industrial Court of Kenya
12 April 2013
2,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first-instance unfair termination claim filed by Samuel Konga, a former security guard, against Lavington Security Company Ltd in the Industrial Court at Mombasa. The Claimant, employed from 14 November 2004 and dismissed on 21 January 2010 on a monthly salary of Kshs 6,000, claimed notice pay, leave, overtime, public holiday pay and terminal benefits totaling Kshs 197,600. The Respondent, though served with summons and hearing notices on multiple occasions and evidenced by affidavits of service, never filed a Response nor appeared. The court, Radido J, allowed the hearing to proceed ex parte after satisfying itself of service. Framing the sole issue as whether the termination was unlawful and the appropriate remedies, the court held the dismissal procedurally unfair under section 41 of the Employment Act (no notification of reasons) and substantively unfair under sections 43 and 45 (the employer failed to prove valid and fair reasons). Invoking section 10(7), the court accepted the Claimant's asserted terms of employment. Remedies: one month's salary in lieu of notice (Kshs 6,000), payment in lieu of five years' untaken leave (Kshs 30,000), and the maximum twelve months' compensation for unfair termination (Kshs 72,000), totaling Kshs 108,000. Claims for public holidays and overtime failed as unproven special damages; leave allowance as such and terminal benefits were declined, the latter because section 35(5) bars service pay to NSSF contributors. There was no order as to costs. Judgment was delivered in Mombasa on 12 April 2013.

Key legal issues

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01

Whether the termination of the Claimant was unlawful

Holding

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.

Reasoning

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.

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02

What remedies flow from the unlawful termination

Holding

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.

Reasoning

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).

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Legal principles established

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  • 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

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  1. 1.Award of one month salary in lieu of notice of Kshs 6,000
  2. 2.Award of payment in lieu of 5 years leave of Kshs 30,000
  3. 3.Award of 12 months compensation for unfair termination of Kshs 72,000
  4. 4.Total award of Kshs 108,000 to the Claimant
  5. 5.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007sections 9, 10 and 74
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 28
  • Employment Act, 2007section 49(1)(c)
  • Industrial Court Actsection 12(3)(v) and (viii)
  • Labour Institutions Actleave allowance under Wages Orders
Jurisdiction invoked
Industrial Court Act, section 12(3)(v) and (viii)

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, "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.