Mutunga James Musyoka v Factory Guards Limited [2013] KEELRC 711 (KLR)

Industrial Court of Kenya

10 July 2013

LNLinnet Ndolo

1,004 words in judgment

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The bottom line

A Kenyan security guard who quit over a disputed transfer lost his unfair dismissal claim but won Kshs 28,748 in uniform refunds and unpaid leave.

What this practically means

Executive summary

The Claimant, a security guard employed by the Respondent from November 2007 to 30th June 2011 on renewable periodical contracts, sued for unfair constructive termination and terminal dues. He claimed that on 30th June 2011 the Respondent's Controller verbally transferred him from Magadi Soda/Kajiado to the Head Office in Nairobi, and that upon reporting there he was told to await redeployment which never came. He sought a declaration of unfair termination, one month's salary in lieu of notice, refund of Kshs. 3,000 uniform deductions, three years' leave, salary for the remainder of his contract term, costs and interest. The Respondent maintained that the Claimant was caught carrying away a metal drum from the site without permission, was pardoned and asked to shift to a site near his supervisor, declined, absented himself from duty from 5th July 2011 and was dismissed on 27th July 2011. Applying section 47(5) of the Employment Act, 2007, the Court found the Claimant's account untruthful and unreliable: he gave no corroborative evidence and admitted under cross-examination having taken the drum. The claims for unfair termination, notice pay and salary for the remainder of the contract were dismissed. However, the refund of Kshs. 3,000 uniform deductions succeeded, as the Respondent's witness confirmed the uniform was returned, and the Claimant was awarded leave for three years at 21 days per year since the Respondent produced no leave records. The total award was Kshs. 28,748, with each party bearing their own costs.

Key legal issues

Manner of the Claimant's departure from employment

Holding

The Claimant failed to prove unfair constructive termination; his account was found untruthful and unreliable

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The Claimant gave an account of his transfer and failure to redeploy but offered no corroborative evidence, and under cross-examination admitted having taken a metal drum from the site. The Respondent's three witnesses were consistent that he was caught with the drum. The Court could not confirm his claim that the drum was given to him by one Kisia.

p. 3

Refund of uniform deductions

Holding

The claim for refund of Kshs. 3,000 deducted on account of uniform succeeds

Reasoning

The Respondent's witness Kitonga confirmed that the Claimant returned his uniform, and there was no justification for the deduction. The Court therefore ordered a refund of Kshs. 3,000.

p. 3

Leave entitlement

Holding

The Claimant is awarded leave for three years at 21 days per year

Reasoning

The Claimant testified that he did not go on leave in 2007, 2008 and 2009. The Respondent, which bore the burden of producing leave records, did not produce any records to disprove this. The Court therefore awarded three years' leave calculated on his last salary.

p. 3

Legal principles established

In complaints of unfair termination, the burden of proving that an unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
Where an employer does not produce leave records to show that leave was taken, the employee's unchallenged testimony that leave was not taken will be accepted

Court orders

1.Refund of money deducted on account of uniform of Kshs. 3,000
2.Award of leave for three years at 21 days per year amounting to Kshs. 25,748
3.Total award of Kshs. 28,748 to the Claimant
4.Each party to bear their own costs

Authorities

Legislation

Employment Act, 2007Section 47(5)

Jurisdiction invoked: Employment and labour relations jurisdiction of the Industrial Court (Employment Act, 2007)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mutunga James Musyoka v Factory Guards Limited [2013] KEELRC 711 (KLR)", Case Analysis (2013). Cause No 1060 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/711/eng@2013-07-10

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