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ELRCPartially AllowedCause Number 849 of 2011· [2014] KEELRC 568 (KLR)

Justus Atulo Ashioya v ‘A’ Team Security Limited [2014] KEELRC 568 (KLR)

Industrial Court of Kenya
20 March 2014
JRJames Rika
4,551 words in judgment
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The bottom line

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A Kenyan security guard fired without notice or a hearing won Kshs. 329,170 after the Industrial Court found his dismissal unfair under the Employment Act.

What this practically means

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Executive summary

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The Claimant, a Night Guard employed by the Respondent security firm from 23rd December 2000, claimed he was unfairly and unlawfully terminated on 26th January 2011 when a Supervisor slapped him, told him he was old and needed to retire, and had him replaced on duty. He sought compensation, notice pay, salary underpayments, house rent allowance, overtime, leave pay, gratuity and other reliefs totalling Kshs. 881,354. The Respondent contended he deserted after being found asleep and insulting his Manager on 25th January 2011. The Court preferred the Claimant's version, supported by the Guard Book showing he worked on the material nights and that inspections were recorded as satisfactory, and by his colleague's testimony. It found no valid reason for termination and no show-cause notice, formal charges or hearing as required under Section 41 of the Employment Act 2007; the desertion allegation was false. Termination was declared unfair and the Claimant awarded 10 months' gross salary compensation plus one month's notice pay. Salary underpayments under the successive Wage Orders were awarded at Kshs. 124,484 (after deducting Kshs. 87,168 shown in payment vouchers), house rent allowance of Kshs. 102,000 was allowed as conceded, and January 2011 salary of Kshs. 8,651 was awarded. Overtime, public holiday, leave pay and leave travelling allowance claims failed for lack of evidential support; gratuity was rejected on N.S.S.F membership; uniform and good-conduct refunds were refused for want of evidence. The Respondent was ordered to issue a Certificate of Service forthwith. There was no order on costs. Dated and delivered at Nairobi, 20th March 2014, by Rika J.

Key legal issues

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01

Whether termination was for valid reasons and by fair procedure

Holding

Termination was unfair - no valid reason and no hearing; the desertion claim was untrue

Reasoning

The Guard Book, a contemporaneous record, showed the Claimant worked on the material nights and recorded inspections as satisfactory, contradicting the Respondent's claim he was found asleep. The Court credited the Claimant's and his witness's testimony over the Respondent's, found he was ejected from duty on 26th January 2011, and found no show-cause notice, formal charges, or hearing as required by Section 41 of the Employment Act.

p. 6
02

Whether the Claimant was underpaid contrary to Wage Orders

Holding

Underpayment of Kshs. 124,484 established (Kshs. 211,652 less Kshs. 87,168 already paid in vouchers)

Reasoning

The wage rates payable under the successive Regulation of Wages Orders from 2000 to 2011 were not disputed, and the actual rates paid were conceded. Payment vouchers acknowledged underpayments and showed part-payment of Kshs. 87,168, which the Court deducted because the Claimant had not disclosed these payments.

p. 7
03

Entitlement to house rent allowance

Holding

Allowed in full at Kshs. 102,000 as prayed

Reasoning

The Respondent's own witness, the Administration Manager, conceded the Claimant was entitled to 15% of basic pay as house rent allowance, and there was no evidence it was paid. The computation was based on the Regulation of Wages [Protective Security Services] Order 1998.

p. 7
04

Compensation for unfair termination and notice pay

Holding

10 months' gross salary (Kshs. 86,510) plus one month's notice pay

Reasoning

Having found the termination unfair, the Court exercised its discretion under Section 49 of the Employment Act 2007 to award 10 months' gross salary at the rate due as of 26th January 2011, plus notice pay equivalent to one month's basic salary, the Claimant having worked 10 years.

p. 6

Legal principles established

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  • An employer must, before termination, give the employee notice of charges and a hearing as contemplated under Section 41 of the Employment Act 2007
  • An employee who claims overtime bears the burden of providing clear evidence of the hours and days worked
  • An employee subscribed to the N.S.S.F is not entitled to gratuity in addition to social security payments

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.The Respondent shall pay compensation for unfair termination at Kshs. 86,510
  3. 3.The Respondent shall pay arrears of house rent allowance at Kshs. 102,000
  4. 4.The Respondent shall pay salary underpayments at Kshs. 124,484
  5. 5.The Respondent shall pay 1 month salary in lieu of notice at Kshs. 7,525
  6. 6.The Respondent shall pay salary for January 2011 at Kshs. 8,651 - total Kshs. 329,170, to be paid within 30 days of the delivery of the Award
  7. 7.The Respondent to avail to the Claimant his Certificate of Service forthwith
  8. 8.No order on the costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 49
  • Employment ActSection 51
  • Employment ActSection 35(6)
  • Regulation of Wages [Protective Security Services] Order1998 and 2000 Orders
  • Regulation of Wages [General] [Amendment] Order2002 Amendment Order
  • Regulation of Wages [Amendment] OrderWage Orders of 2003, 2004, 2005 and 2006
Jurisdiction invoked
Industrial Court jurisdiction over employment disputes (Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Justus Atulo Ashioya v ‘A’ Team Security Limited [2014] KEELRC 568 (KLR)", Case Analysis (2014). Cause Number 849 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/568/eng@2014-03-20

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