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ELRCPartially AllowedMemorandum of Claim dated 20th May 2010 (amended 27th July 2012)· [2015] KEELRC 1533 (KLR)

Edwin Omondi Achwada v Tandu Alarm Systems Ltd [2015] KEELRC 1533 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
26 January 2015
MOMAUREEN ONYANGO
1,483 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a security guard was unfairly dismissed because his employer never gave him a hearing before firing him.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent on 4th July 2007 and summarily dismissed on 12th April 2010 while deployed at Panari Hotel, claimed unfair dismissal seeking notice, service pay, leave for 2008, compensation totalling Kshs 165,558.40, interest and costs. The dismissal letter cited two grounds: allowing an unauthorised vehicle into the basement parking, and possession of an electric water heater using a client's electricity contrary to company regulations. The respondent defended the dismissal as lawful gross misconduct, asserting the claimant admitted the offences, and that computed dues of Kshs 11,341/= were declined. The court held that under Sections 41, 43 and 45 of the Employment Act a fair dismissal requires both a valid reason and fair procedure. On the evidence, the dismissal letter appeared prepared before the claimant arrived at the head office, and he was never given a hearing before the dismissal decision; the alleged admission was undocumented and his 14th April 2010 letter was an explanation, not an admission. The dismissal was therefore unfair. Remedies: notice of Kshs 10,892/= (uncontested); leave for 2008 of 26 days at Kshs 5,312/=, casual employment converting to a monthly contract after 30 days under Section 37(1)(a); and compensation of 4 months gross salary, Kshs 43,568/=, under Section 49(1)(c) given service of under 3 years. Service pay was refused: the claimant lacked 5 years' service under the Protective Security Services Order and, as an NSSF member, was excluded under Section 35(5)/(6). The award totalled Kshs 59,772/=, plus the respondent's offered terminal dues of Kshs 11,341/=, making Kshs 71,113/=. The decretal sum attracts interest from the date of judgment, with costs to the claimant.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally unfair because the claimant was never given a hearing before the decision to dismiss him was reached; the letter of dismissal appeared prepared before he arrived at the head office

Reasoning

The incidents and the dismissal occurred on the same day. The claimant was sent to the head office, asked to explain, and then handed the dismissal letter. The alleged admission of the offences was undocumented; the claimant's letter of 14th April 2010 was an explanation, not an admission. There was no evidence of compliance with Section 41 of the Employment Act.

p. 3
02

Notice pay

Holding

Having found the dismissal unfair, the claimant is entitled to notice; the uncontroverted sum of Kshs 10,892/= gross pay was awarded

Reasoning

The court found the dismissal unfair, entitling the claimant to notice. The respondent did not contest the sum claimed of Kshs 10,892/= as gross pay, so it was awarded in full.

p. 3
03

Service pay

Holding

Claimant not entitled to service pay - not yet 5 years of service under the Protective Security Services Order, and excluded as an NSSF member under Section 35(5)/(6)

Reasoning

The Regulation of Wages (Protective Security Services) Order provides gratuity at 18 days salary after completion of 5 years, which the claimant had not served. Additionally, his NSSF membership excluded him from service pay under Section 35(5) as read with 35(6) of the Employment Act.

p. 3
04

Leave for 2008

Holding

Claimant entitled to leave for 2008; casual employment converts to monthly contract after 30 days and leave accrues after 2 months of service

Reasoning

Section 28 of the Employment Act grants annual leave after 2 months of service irrespective of the nature of employment, and Section 37(1)(a) converts casual employment to a monthly contract after 30 days continuous service. The claimant was awarded 26 days for 2008 in the sum of Kshs 5,312/= based on his last basic pay.

p. 3
05

Compensation under Section 49(1)(c)

Holding

Compensation of 4 months gross salary (Kshs 43,568/=) awarded, taking into account the claimant's service of less than 3 years and the Section 49(4) factors

Reasoning

Having been unfairly dismissed, the claimant qualified for compensation under Section 49(1)(c). The court considered his service of less than 3 years and all the circumstances of his case together with the factors in Section 49(4) in fixing 4 months gross salary.

p. 3

Legal principles established

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  • For a fair dismissal under Sections 41, 43 and 45 of the Employment Act there must be both a valid reason and a fair procedure, including a hearing before the dismissal decision is made
  • An employee qualifies for annual leave after completion of 2 months service irrespective of the nature of employment, and casual employment automatically converts to a monthly contract after 30 days continuous employment

Court orders

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  1. 1.Award of notice pay of Kshs 10,892/=
  2. 2.Award of leave for 2008 of 26 days in the sum of Kshs 5,312/=
  3. 3.Award of compensation of 4 months gross salary in the sum of Kshs 43,568/=, totaling Kshs 59,772/=, in addition to the terminal benefits offered by the respondent of Kshs 11,341/=, making Kshs 71,113/=
  4. 4.The decretal sum to attract interest from the date of judgment
  5. 5.Claimant to have costs of the case

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 35(5)
  • Employment ActSection 35(6)
  • Employment ActSection 28
  • Employment ActSection 37(1)(a)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(4)
  • Regulation of Wages (Protective Security Services) Ordergratuity at 18 days salary after completion of 5 years

Cases cited (8)

  • Hellen Nechesa V Kamongo Waste Paper Ltd
    [2013] eKLR
  • Edwin Nyamanga V Silver Holdings Ltd
    [2014] eKLR
  • Mary Chemweno Kiptui V Kenya Pipeline Company Limited
    [2014] eKLR
  • Koech V African Highlands and Produce Company Limited and Another
    [2006] 2EA 148
  • Bachitter Singh Chase V Barclays Bank of Kenya Ltd
    HCCC 4549 of 1987
  • Ladislaus Mukasa V Uganda Commercial Bank
    [1994] 11 KALR 21
  • Kigunda V Barclays Bank
    [1973] EA 569
  • Boston Deep Sea Fishing V Ausell
    (1886 - 90) All ER 65
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim of unfair dismissal under the Employment Act (Sections 41, 43, 45, 49)

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, "Edwin Omondi Achwada v Tandu Alarm Systems Ltd [2015] KEELRC 1533 (KLR)", Case Analysis (2015). Memorandum of Claim dated 20th May 2010 (amended 27th July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1533/eng@2015-01-26

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