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ELRCPartially AllowedCause No 1330 of 2010· [2013] KEELRC 595 (KLR)

Kenya Guards and Allied Workers Union v Lavington Security Limited [2013] KEELRC 595 (KLR)

Industrial Court of Kenya
26 June 2013
LNLINNET NDOLO
1,259 words in judgment
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The bottom line

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A Kenyan security guard won pay arrears worth Kshs 51,887 after the court confirmed unions can represent workers even without a recognition agreement.

What this practically means

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Executive summary

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The Claimant union sued on behalf of its member, David Kiptanui Arap Ruto, a security guard employed by the Respondent, alleging wrongful termination on 5th May 2010 without notice or lawful cause, and claiming notice pay, underpayment, off duties, public holidays, leave, leave travelling allowance, house allowance, overtime and 12 months' pay for unfair termination. The Respondent denied termination, asserting the grievant was suspended for 10 days pending investigation and failed to report for redeployment, and further objected that absent a Recognition Agreement the union lacked locus standi. The Court first upheld the union's standing, applying Article 41 of the Constitution and its earlier holding that absence of recognition cannot vitiate an employee's right to union representation. On termination, the Court applied Section 47(5) of the Employment Act on burden of proof and found that neither party had proved its account of the cessation of employment; the unfair termination claim therefore failed, but one month's pay in lieu of notice was awarded. The Court found the grievant was underpaid against the Regulation of Wages (General) (Amendment) Order, 2009 minimum wage by Kshs. 2,340 per month, awarded 21 days' leave pay for want of the employer's leave records under Section 74, and awarded house allowance at 15% of basic pay under Section 31(1), the Respondent having shown neither housing nor inclusion of a house allowance. Claims for off duties, public holidays and leave travelling allowance were dismissed as unproved. Total award: Kshs. 51,887. The Respondent was ordered to pay costs for its lack of cooperation at conciliation.

Key legal issues

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01

Union locus standi absent a Recognition Agreement

Holding

The Claimant's locus standi to represent the grievant at conciliation and in the proceedings was upheld

Reasoning

Article 41 of the Constitution confers on employees the right to join and participate in activities of a trade union of their choice. The Court relied on its prior holding in Kenya National Private Security Workers Union v Lavington Security Limited that lack of recognition cannot vitiate the right of representation, which would offend the Constitution. The Respondent's objection was therefore rejected.

p. 2
02

Whether the grievant's employment was unfairly terminated

Holding

Claim for unfair termination failed; neither party discharged their evidential burden

Reasoning

Under Section 47(5) of the Employment Act the employee must prove unfair termination while the employer must justify grounds for termination. The Claimant asserted dismissal on 5th May 2010; the Respondent asserted suspension with a duty to report back on 14th May 2010. Each failed to prove its account, so the unfair termination claim failed, though notice pay was awarded.

p. 3
03

Underpayment of wages

Holding

Grievant underpaid on basic salary by Kshs. 2,340 per month

Reasoning

The Regulation of Wages (General) (Amendment) Order, 2009, effective 1st May 2009, set the minimum wage for a night watchman in a municipality at Kshs. 6,340 exclusive of house allowance. The grievant earned Kshs. 4,000 consolidated, hence underpayment of Kshs. 2,340 monthly, awarded for 12 months.

p. 3
04

Leave entitlement

Holding

21 days' pay in lieu of leave awarded in the absence of leave records

Reasoning

Section 74 of the Employment Act requires the employer to keep leave records. The Respondent produced none, and in the absence of such records the Court awarded the grievant 21 days' pay in lieu of leave, computed on the adopted salary figure.

p. 3
05

House allowance

Holding

House allowance awarded at 15% of basic pay as the Respondent proved neither housing nor inclusion of a house allowance

Reasoning

Section 31(1) of the Employment Act obliges employers to provide reasonable housing or pay a sufficient sum as rent. The Respondent led no evidence that the grievant was housed or that his pay included house allowance, so the Court awarded Kshs. 951 per month (15% of basic pay) and adopted the resultant figure as salary for purposes of the Award.

p. 3

Legal principles established

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  • Absence of a Recognition Agreement does not take away an employee's right to be represented by a trade union of their choice under Article 41 of the Constitution
  • Burden of proving unfair termination rests on the employee, while the burden of justifying grounds for termination rests on the employer, per Section 47(5) of the Employment Act

Court orders

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  1. 1.One month's pay in lieu of notice at Kshs. 7,291
  2. 2.Salary underpayment (2,340 x 12) at Kshs. 28,080
  3. 3.Leave pay (7,291 x 21 days) at Kshs. 5,104
  4. 4.House allowance (951 x 12) at Kshs. 11,412
  5. 5.Total award of Kshs. 51,887 against the Respondent
  6. 6.Respondent to pay the costs of the case

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment ActSection 47(5)
  • Employment ActSection 74
  • Employment ActSection 31(1)
  • Regulation of Wages (General) (Amendment) Order

Cases cited (1)

  • Kenya National Private Security Workers Union Vs Lavington Security Limited
    Industrial Court Cause No 377 of 2013
Jurisdiction invoked
Industrial Court jurisdiction over employment disputes (conciliation having failed and certificate of disagreement issued); Article 41 of the Constitution applied

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Guards and Allied Workers Union v Lavington Security Limited [2013] KEELRC 595 (KLR)", Case Analysis (2013). Cause No 1330 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/595/eng@2013-06-26

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