Alex Muthiora Koome v G4s Security Services Kenya Ltd [2015] KEELRC 868 (KLR)
The bottom line
#A Kenyan court ruled G4S unfairly dismissed a security guard without a hearing and ordered maximum compensation of 12 months' salary plus full terminal benefits.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
Termination was procedurally unfair as the claimant was not given a hearing or show-cause letter before dismissal
RW1 admitted the claimant was not given a hearing because he was not available, and no letter to show cause was issued. The dismissal letter also did not specify the days of alleged abscondment. The employer's failure to follow fair procedure independently rendered the termination unfair regardless of the conduct alleged.
Validity of the reason for dismissal (absconding and refusal to obey lawful instruction)
The reason was invalid: the claimant did not abscond and the transfer lacked compliance with the applicable wage order
Absconding means the employee's whereabouts are unknown, which was not the case as the claimant reported to the office. The employer failed to comply with Clause 20 of the Regulation of Wages (Protective Security Services) Order 1998 on transfer costs and allowances, and RW1 could not prove payment of relocation allowance as no records were produced.
Burden of proof on leave entitlement
Respondent failed to disprove the claim for 6 months pro rata leave as it bore the burden for not keeping records
Sections 10(3), 10(6) and 10(7) of the Employment Act require employers to keep leave records for 5 years; failing that, the employer must disprove the employee's claim. The dismissal letter itself acknowledged leave earned but not taken would be paid, and RW1 could not explain the calculations.
Entitlement to gratuity versus service pay
Claimant entitled to service gratuity at 18 days per year for 12 years despite NSSF contributions
The Regulation of Wages (Protective Security Services) Order provides gratuity for employees with over 5 years' service. Section 35(6) of the Employment Act confirms entitlement to gratuity notwithstanding NSSF contributions; the authority relied on by the respondent concerned service pay, not gratuity, and was inapplicable.
Certificate of service
Respondent directed to issue the certificate within 30 days
Section 51 of the Employment Act is mandatory: an employer SHALL issue a certificate of service upon termination. The claimant's alleged failure to collect it does not relieve the employer of this statutory duty.
Legal principles established
#- Termination without a disciplinary process or an opportunity to explain is procedurally unfair
- Where an employer fails to keep statutory leave records, the burden lies on the employer to disprove the employee's claim
- Entitlement to gratuity under the Protective Security Services Order is not displaced by NSSF contributions
- An employer is mandatorily required to issue a certificate of service on termination
Court orders
#- 1.Payment of one month's salary in lieu of notice of Kshs 14,870
- 2.Payment of Kshs 4,461 being wages and allowances for 9 days worked and not paid for
- 3.Payment of Kshs 3,669 for 6 months pro rata leave based on 26 leave days and basic pay
- 4.Payment of Kshs 60,941 as service gratuity based on basic salary
- 5.Compensation of 12 months' salary in the sum of Kshs 178,448 based on gross salary under Section 49(1)(c) of the Employment Act
- 6.Respondent to issue certificate of service to the claimant within 30 days from date of judgment
- 7.Respondent to pay claimant's costs of the suit
- 8.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007 (first-instance labour claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Michael Otieno Omiti & 2 others v Wells Fargo Limited & another [2018] KEELRC 1456 (KLR)[2018] KEELRC 1456 (KLR)12 Apr 2017applied
Cite this brief
#Cite this brief
Caselaw, "Alex Muthiora Koome v G4s Security Services Kenya Ltd [2015] KEELRC 868 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/868/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.