Geoffrey Nyandusi Oeri v Security Guards Services Limited & another [2015] KEELRC 1362 (KLR)
The bottom line
#A Kenyan court awarded a dismissed security guard over Kshs. 153,000 because his employer punished him twice for the same mistake and skipped the required hearing.
What this practically means
#Executive summary
#Key legal issues
#Effective date of employment
The document produced as a letter of appointment did not meet Section 10 requirements; the court adopted the Claimant's evidence of employment from 2nd July 2001
The Respondents produced Serial No 1274A as the Claimant's letter of appointment. The court tested it against Section 10 of the Employment Act, 2007 and found no correlation, concluding it was at best an internal employee data form. Having failed to document the employment, the Respondents attracted Section 10(7), and the Claimant's evidence on the effective date was adopted.
Justifiability of the termination
Termination was substantively unfair - the dismissal duplicated an offence already dealt with by warning, and the employer failed to prove the reason
The incident of 24th April 2011 had already been the subject of a warning order. Under the principle against double jeopardy in disciplinary processes, once a distinct disciplinary action is taken, the same allegations cannot be revisited. Further, under Section 43(1), the employer bears the burden of proving the reason for termination, and an unsigned, unserved termination letter did not discharge that burden.
Procedural fairness of the termination
Termination was procedurally unfair for want of compliance with Section 41 of the Employment Act
Section 41 requires the employer to explain the reasons for termination to the employee, allow a fellow employee or representative to be present, and hear and consider explanations. There was no evidence of any attempt by the 1st Respondent to comply with this procedure, so the termination was unfair for want of due process in addition to being substantively unjustified.
Remedies
Ten months' salary compensation, one month's notice pay and leave pay awarded; other heads dismissed
Given findings of both substantive and procedural unfairness, the court awarded ten months' salary compensation taking into account length of service and denial of a hearing. Notice pay was awarded. The Respondent produced no leave records, so the leave claim succeeded. Unpaid salary, severance and bulbs-refund claims failed for want of proof.
Legal principles established
#- Where an employer fails to document employment particulars, the court may invoke Section 10(7) of the Employment Act and adopt the employee's evidence
- Once a distinct disciplinary action such as a warning is taken against an employee, the same allegations cannot found future disciplinary action
- Directors and officers of limited liability companies should not ordinarily be joined in proceedings against the companies they represent unless the corporate veil is being used to defeat justice
Court orders
#- 1.Award of 10 months' salary in compensation for unfair termination of Kshs. 86,510.00 against the 1st Respondent
- 2.Award of one month's salary in lieu of notice of Kshs. 8,651.00
- 3.Award of leave pay of Kshs. 58,538.00
- 4.Total award of Kshs. 153,699.00 with interest at court rates from the date of the award until payment in full
- 5.1st Respondent directed to issue the Claimant with a certificate of service
- 6.Claim against the 2nd Respondent dismissed
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abel v Teachers Service Commission (Cause E003 of 2023) [2024] KEELRC 1765 (KLR)[2024] KEELRC 1765 (KLR)4 Jul 2024applied
- Tom Otieno Midianga v Wilham Kenya [2021] KEELRC 1355 (KLR)[2021] KEELRC 1355 (KLR)30 Jun 2021followed
- Nairobi City Council v Thabiti Enterprises Ltd [2015] KECA 813 (KLR)[2015] KECA 813 (KLR)6 Mar 2015
Cite this brief
#Cite this brief
Caselaw, "Geoffrey Nyandusi Oeri v Security Guards Services Limited & another [2015] KEELRC 1362 (KLR)", Case Analysis (2015). Cause No 1215 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1362/eng@2015-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.