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ELRCPartially AllowedCause Number 1006 of 2010· [2014] KEELRC 549 (KLR)

Sebastian Juma Wanzala v Inter Security Services Limited [2014] KEELRC 549 (KLR)

Industrial Court of Kenya
4 April 2014
1,926 words in judgment
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The bottom line

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A Kenyan court ruled a security guard's on-the-spot firing was unfair because the employer had no disciplinary hearing and couldn't prove its reasons.

What this practically means

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Executive summary

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Sebastian Juma Wanzala, a security guard employed by Inter Security Services Limited from 2nd February 1997, claimed he was summarily dismissed on 25th May 2010 while guarding a construction site at Hurlingham, Nairobi, without notice or reason, and sought notice pay, 12 years' leave pay, salary for 24 days worked in May 2010, service pay and 12 months' compensation for unfair termination. The Respondent, through its Director Issack Okwirry, alleged the Claimant allowed trespassers to wash cars and cook at the site, and alternately claimed he was summarily dismissed (in its Statement of Response) and that he left of his own volition (in testimony). The Court found these two positions irreconcilable and preferred the pleaded summary dismissal. On substance, it held the car-washing occurred outside the gated site beyond the guard's duty, and the cooking at a stalled site with no workers was not a valid ground. Procedurally, there was no disciplinary hearing; the on-the-spot dismissal deprived the employer of the chance to substantiate its reasons. Termination was declared unfair for want of both valid reasons and procedural fairness. The Court awarded 7 months' salary as compensation (Kshs. 49,532), notice pay (Kshs. 7,076), 24 days' salary (Kshs. 6,531), 252 days' leave pay (Kshs. 68,582) and gratuity of Kshs. 58,785 under the Protective Security Services Order, totalling Kshs. 190,506, payable within 30 days. Each party was to bear its own costs, with no order on interest.

Key legal issues

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01

Validity of reasons for termination under Section 43 and 45 of the Employment Act 2007

Holding

Neither the car-washing outside the gate nor the women cooking at the stalled site was a valid and sufficient reason for summary dismissal

Reasoning

The Claimant's duty was confined to the gated construction site; cars were washed outside the compound. The women cooking inside a stalled site with no workers made no commercial sense. Both accusations, conceded in cross-examination, failed as valid grounds.

p. 3
02

Procedural fairness under Section 41 of the Employment Act 2007

Holding

The summary dismissal was on the spot, without a disciplinary hearing, and therefore procedurally unfair

Reasoning

The grounds were never tested through a disciplinary hearing. The Claimant was questioned at the office without a witness and dismissed on the spot; the same-day replacement of the guard suggested a pre-determined dismissal shorn of procedural fairness.

p. 3
03

Whether the Claimant was dismissed or deserted employment

Holding

The Claimant was summarily dismissed; the witness's contrary evidence was untruthful

Reasoning

The Statement of Response admitted summary dismissal while the witness asserted voluntary exit. Both could not be true; the court preferred the pleaded position and the Claimant's account.

p. 3
04

Entitlement to salary, leave pay and service pay

Holding

Employer's failure to produce records of salary payment and leave justified awards for 24 days' salary, 252 days' leave pay and gratuity under the Protective Security Services Order

Reasoning

The employer offered no conclusive evidence of payment or leave records. The Claimant's uncontradicted evidence of 12 years without leave was accepted, and the Regulation of Wages Order justified gratuity at 18 days per completed year.

p. 3

Legal principles established

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  • Where the employer's pleaded position and its witness's testimony contradict each other, the court may find the witness untruthful and prefer the pleaded position
  • A guard's duty does not extend beyond the premises he is entrusted to guard; third-party activity outside the gate is not a valid ground for dismissal
  • An employer who opts for on-the-spot dismissal forfeits the opportunity to substantiate the validity of its reasons, having disregarded the employee's procedural protections under Section 41
  • The employer bears the burden of proving payment of salary and maintaining leave records; absence of such records entitles the employee to his uncontradicted claim

Court orders

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  1. 1.Declaration that termination of the Claimant's contract was unfair and unlawful
  2. 2.Respondent to pay 7 months' salary in compensation at Kshs. 49,532
  3. 3.Respondent to pay 1 month salary in lieu of notice at Kshs. 7,076
  4. 4.Respondent to pay 24 days' salary at Kshs. 6,531
  5. 5.Respondent to pay 252 days of annual leave pay at Kshs. 68,582
  6. 6.Respondent to pay service/gratuity pay at Kshs. 58,785, total Kshs. 190,506
  7. 7.Payment within 30 days of delivery of the Award
  8. 8.Each party to bear their own costs; no order on interest

Authorities

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Legislation

  • Employment ActSections 41, 43, 45
  • Regulation of Wages [Protective Security Services] Ordergratuity/service pay rate of 18 days per completed year
Jurisdiction invoked
Industrial Court jurisdiction over employment disputes (issue in dispute: unfair and unlawful termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Sebastian Juma Wanzala v Inter Security Services Limited [2014] KEELRC 549 (KLR)", Case Analysis (2014). Cause Number 1006 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/549/eng@2014-04-04

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