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ELRCPartially AllowedELRCC No. 451 of 2014 (consolidated with ELRCC No. 452 of 2014)· [2015] KEELRC 497 (KLR)

Paul Mwasatu Maganga & 2 others v G4S Kenya Limited [2015] KEELRC 497 (KLR)

Employment and Labour Relations Court
2 October 2015
3,410 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Three claimants, formerly employed by the respondent security company as Assistant Cash Services commander, CIT driver and chase-car driver respectively, sued for terminal benefits and compensation for unfair termination following the theft of client money in transit from Kilanguni Lodge to Barclays Bank, Voi on 31.1.2014, stolen by the radio operator left in the CIT vehicle. All three were charged with stealing in Voi Criminal Case No. 105 of 2014, acquitted, but nonetheless summarily dismissed on 11.2.2014 for gross negligence. ELRCC No. 451 of 2014 and 452 of 2014 were consolidated. The court found the disciplinary procedure fair, complying with Sections 41 and 51 of the Employment Act. On the substantive reason, it held the respondent failed to prove negligence by the first claimant (the safe could only be operated from the driver's dashboard and he never sat in the front cabin) and by the third claimant (nothing showed the chase-car driver was to confine the radio operator). Their dismissals were therefore unfair and unjustified under Section 45(2)(a) and (b). The second claimant, the driver, was found to have opened the safe and failed to close it, constituting negligence under Section 44(4)(c); his unfair-termination claim failed. The first and third claimants were awarded maximum compensation of 12 months' gross salary, one month's notice pay, and house allowance arrears limited by Section 90 to three years at 15% of basic pay. Judgment was entered for an aggregate of Ksh 981,265.85, with costs and interest to the first and third claimants only.

Key legal issues

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01

Whether a fair procedure was followed in dismissing the claimants

Holding

Yes - suspension, a physical hearing before a disciplinary committee, accompaniment by fellow employees, explanation of charges and consequences, and opportunity to respond satisfied Sections 41 and 51 of the Employment Act

Reasoning

The court traced each element of Section 41: suspension, invitation to a hearing, explanation of charges, entitlement to accompaniment by a fellow employee or union representative, and opportunity to respond before the decision. Certificates of service were issued and dues processed. The court held the disciplinary proceedings were in consonance with Sections 41 and 51 of the Employment Act, so the procedure limb of Section 45 was met.

p. 3
02

Whether the reason for dismissal (gross negligence) was valid and fair for the first and third claimants

Holding

No - the respondent failed to prove negligence; the dismissal was unfair and unjustified under Section 45(2)(a) and (b)

Reasoning

The golden rules on cash in transit were not produced in evidence. The evidence, including criminal case testimony, showed the safe could only be operated from the driver's dashboard, and the first claimant never sat in the front cabin. Nothing proved the chase-car driver was to confine the radio operator. The first and third claimants were therefore not negligent, and no collusion was proved.

p. 4
03

Whether the reason for dismissal was valid and fair as regards the second claimant (the driver)

Holding

Yes - he opened the safe to collect the cash box and failed to close it, either deliberately or through error of judgment, constituting negligence under Section 44(4)(c)

Reasoning

No one could open or close the safe without the driver's assistance via the dashboard gadget. The court found he opened the safe, removed the cash box, and left it open, whether deliberately or through error of judgment. That negligence was a valid and fair reason for summary dismissal, so his unfair-termination claim failed, though he was still awarded salary for the 11 days of February 2014 worked.

p. 5
04

What reliefs flow from the finding of unfair dismissal

Holding

The first and third claimants were awarded the maximum 12 months' gross salary compensation under Section 49(1), one month's notice pay under Section 35, and house allowance arrears limited to the 3 years preceding suit under Section 90

Reasoning

Considering their long service (16 years for the first claimant) with clean disciplinary records, and the likelihood they could not secure similar employment in the security industry given the circumstances of dismissal, the court exercised discretion to award maximum compensation of 12 months' gross salary. House allowance was awarded at 15% of basic pay for 2012 and 2013 only, the respondent having failed to prove consolidated pay or provision of housing under Section 31.

p. 5

Legal principles established

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  • Termination of employment is unfair unless the employer proves it was founded on a valid and fair reason and done after following a fair procedure
  • The burden of proving unfair termination initially lies on the employee but shifts to the employer to justify the reason for termination once alleged
  • An acquittal in criminal proceedings is not determinative, but the employer must still prove negligence with evidence before the court

Court orders

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  1. 1.Judgment entered for the claimants against the respondent for an aggregate sum of Ksh 981,265.85, shared as per the individual awards (Paul Mwasafu Maganga Ksh 541,799.15; Haron Okindo Omae Ksh 427,733.35; Robert Onyango Tiema salary for February 2014 of Ksh 11,733.35)
  2. 2.Costs of the suit and interest awarded only to Paul Mwasafu Maganga and Haron Okindo Omae
  3. 3.Each party in ELRCC No. 451 of 2014 to bear their own respective costs
  4. 4.A copy of the judgment to be filed in ELRCC 451 of 2014 and 452 of 2014

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 51
  • Employment ActSection 43
  • Employment ActSection 44 (4) (c)
  • Employment ActSection 47 (5)
  • Employment ActSection 49 (1)
  • Employment ActSection 49 (3)
  • Employment ActSection 35
  • Employment ActSection 90
  • Employment ActSection 31
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; suits consolidated under the court's procedure

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, "Paul Mwasatu Maganga & 2 others v G4S Kenya Limited [2015] KEELRC 497 (KLR)", Case Analysis (2015). ELRCC No. 451 of 2014 (consolidated with ELRCC No. 452 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/497/eng@2015-10-02

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