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ELRCAllowedCause No. 282 of 2014· [2015] KEELRC 718 (KLR)

Sylvester Wafula Wekesa v Security Guards Services Limited [2015] KEELRC 718 (KLR)

Employment and Labour Relations Court
15 July 2015
HWHellen S. Wasilwa
1,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard's dismissal was unfair because the employer had no proof of misconduct and skipped a proper disciplinary hearing, awarding 12 months' salary.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent at a monthly salary of Kshs. 10,912, sued for wrongful and unfair termination of his employment on 14/10/2013 and for unpaid terminal dues totalling Kshs. 37,748 plus compensation. He claimed employment from 27/3/2010; the Respondent asserted employment began on 13/2/2011 and that he was summarily dismissed for misconduct after receiving three warnings within a year, and that all terminal dues were paid. The court framed three issues: validity of the reasons for termination, procedural fairness, and remedies. On the first issue, the court found the reasons given - failing to carry a rungu, refusing an assignment and refusing to wear a uniform - did not warrant summary dismissal under Section 44(4) of the Employment Act. The warning letters were discredited: one was unsigned, another bore illegible signatures, and a third was issued by an unqualified person, leading the court to brand them a sham. On procedure, the Respondent alleged a disciplinary hearing at which the Claimant was accompanied by his brother, but produced no minutes, and the Claimant denied the hearing occurred; the court held due process under Section 41 was not followed. The termination was declared unfair under Section 45. The court awarded notice pay of Kshs. 10,912, leave of Kshs. 7,638, salary arrears of Kshs. 19,198, and 12 months' salary (Kshs. 130,944) as damages for unfair termination - a total of Kshs. 168,692 - with costs to the Claimant.

Key legal issues

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01

Validity of reasons for termination

Holding

There were no valid reasons warranting termination; the alleged misconduct (failing to carry a club, refusing an assignment, refusing to wear a uniform) did not justify summary dismissal under Section 44(4) of the Employment Act.

Reasoning

The court examined the reasons given for dismissal - indiscipline over a rungu, refusal of an assignment and refusal to wear a uniform. The warning letters relied on were unsigned or issued by an unqualified person, and the Claimant denied them. The apology letter for refusing an assignment was explained by lack of fare for a distant posting, which the court held could not warrant summary dismissal. No proof existed of any act or omission under Section 44(4).

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02

Procedural fairness before termination

Holding

Due process was not accorded the Claimant before termination as required by Section 41 of the Employment Act.

Reasoning

The Respondents claimed a disciplinary hearing was held at which the Claimant was accompanied by his brother, but produced no minutes of that hearing. The Claimant testified he was dismissed verbally and denied the hearing took place. Without documentary proof of the hearing and the explanations and representations required by Section 41, the court found the procedure envisaged by the statute was not followed.

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Remedies for unfair termination

Holding

The Claimant was awarded notice pay, leave, salary arrears and the equivalent of 12 months' salary as damages, plus costs.

Reasoning

Having declared the termination unfair under Section 45 of the Employment Act, the court awarded the remedies prayed: one month's salary in lieu of notice (Kshs. 10,912), 21 days' leave (Kshs. 7,638), salary arrears for September and October 2013 (Kshs. 19,198), and 12 months' salary as compensation (Kshs. 130,944), totalling Kshs. 168,692, with costs to the Claimant.

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Legal principles established

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  • An employer bears the burden of proving both valid reason and fair procedure for termination; unproven or unsigned warnings cannot justify summary dismissal.
  • Failure by an employer to exhibit minutes of an alleged disciplinary hearing supports the finding that due process under Section 41 of the Employment Act was not followed.

Court orders

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  1. 1.Declaration that the termination of the Claimant was unfair under Section 45 of the Employment Act
  2. 2.Payment of one month salary in lieu of notice of Kshs. 10,912
  3. 3.Payment of leave for 1 year (21 days) of Kshs. 7,638
  4. 4.Payment of salary arrears for September and October 2013 of Kshs. 19,198
  5. 5.Payment of 12 months salary as damages for unlawful termination of employment (Kshs. 130,944), totalling Kshs. 168,692
  6. 6.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 45(1) and (2)
  • Employment ActSection 44(4)
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 42(1)
  • Employment ActSection 44(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim under Sections 41, 44 and 45 of the Employment Act)

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, "Sylvester Wafula Wekesa v Security Guards Services Limited [2015] KEELRC 718 (KLR)", Case Analysis (2015). Cause No. 282 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/718/eng@2015-07-15

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