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ELRCPartially AllowedCause No. 26 of 2015· [2016] KEELRC 416 (KLR)

Jalis Ayotabi Awiti v J.R.S Group Security Limited [2016] KEELRC 416 (KLR)

Employment and Labour Relations Court
27 October 2016
2,429 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 was constructively dismissed because his employer changed his job without a hearing, awarding him Shs.451,264.90.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from 25th November 2006 until 9th March 2014, claimed he was constructively terminated after being accused of drunkenness at his duty station and then withdrawn from guarding duties and set to induct recruits without any formal communication or hearing. He sought notice pay, leave dues, severance pay, house allowance and underpayments under various minimum wage Legal Notices, totaling Shs.589,347.8, plus a declaration that his termination was unlawful. The Respondent denied the claim, asserting the Claimant reported to work drunk and deserted duty after being asked to record a statement, and prayed for dismissal with costs. In its determination the court held that the burden of justifying the grounds of termination lay on the employer under section 47(5) of the Employment Act, and that the Respondent failed to prove drunkenness or desertion, having produced neither the OB entry nor any witness from the office. Relying on the Court of Appeal decision in Cardinal Otunga High School Mosocho v Khaemba and the constructive dismissal test in Western Excavating v Sharp as adopted in Coca Cola v Ligaga, the court found the Respondent's unilateral change of the Claimant's terms amounted to a significant breach going to the root of the contract, constituting constructive dismissal. The court awarded one month's pay in lieu of notice at Shs.12,548.50, leave dues of Shs.89,640.60, and underpayments of Shs.349,075.80, totaling Shs.451,264.90. Severance pay was refused as the Claimant was not declared redundant; gratuity and compensation for unfair termination were not awarded because they were not prayed for. The Respondent was ordered to pay the Claimant's costs, with interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether the Claimant deserted duty or was constructively dismissed

Holding

The Respondent constructively dismissed the Claimant by unilaterally withdrawing him from guarding duties and transferring him to induct recruits without dealing with the drunkenness allegation

Reasoning

The Respondent bore the burden of proving desertion or drunkenness but failed to produce the OB, call the Manager, or avail records as required by sections 10 and 74 of the Employment Act. Its failure to disprove the Claimant's account of reporting to the office for eight days meant the court had to find for the Claimant, applying the constructive dismissal principles in Western Excavating v Sharp as adopted by the Court of Appeal.

p. 5
02

Entitlement to remedies

Holding

One month's pay in lieu of notice at statutory minimum rates, leave dues for 147 days, and underpayments awarded; severance pay refused

Reasoning

The court assessed notice pay at the statutory minimum wage for a night watchman plus 15% house allowance. The Respondent did not deny the Claimant never took leave, and 21 days per year over 7 years at the General Order daily rate was awarded. Underpayment calculations were unchallenged. Severance was unavailable because the Claimant was not declared redundant.

p. 6

Legal principles established

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  • Where the employer unilaterally assigns an employee new duties, that amounts to a significant breach going to the root of the employment contract entitling the employee to treat himself as discharged - constructive dismissal
  • Where an employer fails to produce prescribed employment records, the burden of proving an alleged term of employment shifts to the employer
  • The burden of justifying the grounds for termination rests on the employer

Court orders

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  1. 1.Declaration that the Respondent constructively dismissed the Claimant from employment
  2. 2.One month's salary in lieu of notice at Shs.12,548.50
  3. 3.Leave dues of Shs.89,640.60
  4. 4.Underpayments of Shs.349,075.80
  5. 5.Total award of Shs.451,264.90 to be paid by the Respondent to the Claimant
  6. 6.Respondent to pay Claimant's costs of the suit
  7. 7.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment Actsection 10
  • Employment Actsection 10(6)
  • Employment Actsection 10(7)
  • Employment Actsection 35
  • Employment Actsection 41
  • Employment Actsection 47(5)
  • Employment Actsection 74
  • Legal Notice No.38 of 2006minimum wage order
  • Legal Notice No.68 of 2009minimum wage order
  • Legal Notice No.64 of 2011minimum wage order
  • Legal Notice No.98 of 2010minimum wage order
  • Legal Notice No.71 of 2012minimum wage order
  • Legal Notice No.64 of 2013minimum wage order
  • Protective Security Industry Ordergratuity at 18 days per year worked
  • General Order for year 2013daily leave rate

Cases cited (3)

  • The Board of governors, Cardinal Otunga High School Mosocho & 2 others v Elizabeth Kwamboka Khaemba
    Kisumu Civil Appeal No.55 of 2015
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Western Excavating (ECC) Ltd v Sharp
    [1978] 1 CR.222
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)

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, "Jalis Ayotabi Awiti v J.R.S Group Security Limited [2016] KEELRC 416 (KLR)", Case Analysis (2016). Cause No. 26 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/416/eng@2016-10-27

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