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ELRCPartially AllowedCause No. 218 of 2014· [2016] KEELRC 477 (KLR)

Joseph Mikae Ogenda v J.R.S. Group Security Limited [2016] KEELRC 477 (KLR)

Employment and Labour Relations Court
15 September 2016
2,237 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 unfairly fired because his employer never gave him a hearing or written reason, and ordered substantial compensation.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from 1st April, 2010, sued for notice pay, service benefits, overtime and compensation following termination of his employment. The respondent admitted the employment but asserted the claimant deserted work on 2nd March, 2014 after a break-in at his assigned premises, having failed to record a statement as directed. At the hearing the claimant testified that after reporting the break-in and recording a police statement, he was told at the respondent's head office that there was no more work for him; the respondent's night manager (RW1) admitted under cross-examination that he was not present at the office when this allegedly happened, and the managers said to have been involved were not called as witnesses. The court held that sections 41 and 43 of the Employment Act require a hearing and proof of valid reasons, found no show-cause letter or summons to a hearing, and concluded the claimant was unfairly terminated rather than a deserter. On remedies, the court awarded one month's notice pay, service pay for four years (finding statutory NSSF remittances had not been made for several years), compensation of ten months' gross salary, and overtime at one-and-a-half and double rates limited to twelve months as a continuing wrong under section 90. Although underpayments were not expressly prayed for, the court awarded them relying on sections 26 of the Employment Act and 48 of the Labour Institutions Act and the Odd Jobs v Mubia principle that courts may determine unpleaded matters apparent from the pleadings, since the claimant had pleaded gross underpayment below statutory minimum wages. The suit succeeded substantially.

Key legal issues

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01

Whether the claimant was unfairly terminated or deserted duty

Holding

The claimant was unfairly terminated; the desertion claim was not proved.

Reasoning

The respondent's only witness (RW1) admitted he was not at the office when the claimant alleges he was verbally terminated. The respondent failed to show any hearing or show-cause letter as required by section 41 of the Employment Act, and the Training Manager and Manager allegedly involved were not called to testify. The claimant's uncontroverted testimony therefore stood, and the court found the termination unfair.

p. 2
02

Entitlement to service pay

Holding

Service pay awarded for 4 years at 15 days' salary per year worked.

Reasoning

The respondent produced the claimant's NSSF statement to show entitlement to service pay was defeated, but scrutiny showed no statutory remittances for 2010, 2011, part of 2012 and part of 2013, and no payslips or records of deductions were submitted. The claimant was therefore entitled to service pay under section 35(5) and (6) of the Employment Act.

p. 3
03

Underpayments not expressly prayed for

Holding

Underpayments awarded although not expressly prayed for, based on sections 26 of the Employment Act and 48 of the Labour Institutions Act and Odd Jobs v Mubia.

Reasoning

The claimant pleaded gross underpayment at paragraph 9 of the claim but did not tabulate a specific prayer for underpayments. The court held that wages orders constitute minimum terms that must be inserted into the contract in substitution for inferior terms, and that the prayer was covered by the pleadings and the principle that a court may determine an unpleaded matter apparent from the pleadings.

p. 5
04

Overtime entitlement

Holding

Overtime awarded at one-and-a-half and double hourly rates for 12 months only.

Reasoning

Both parties confirmed the claimant worked 84 hours a week instead of the 52 provided for in the wages orders, generating 32 overtime hours weekly. Normal overtime was awarded at 1.5 times the hourly rate and Sundays/public holidays at double the hourly rate, limited to 12 months under section 90 of the Employment Act as a continuing wrong.

p. 4

Legal principles established

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  • An employer must give an employee a hearing and prove a valid reason for termination under sections 41 and 43 of the Employment Act; failure to summon the employee for a hearing or issue a show-cause letter renders termination unfair.
  • A court may determine a matter not specifically pleaded if it arises from the pleadings and evidence, per Odd Jobs v Mubia.
  • Statutory minimum wages and conditions in a wages order form part of the contract of employment and may not be varied by agreement.

Court orders

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  1. 1.One month's salary in lieu of notice awarded at Shs. 12,548.50 (gross minimum wage for night watchman for 2013)
  2. 2.Service pay for 4 years at 15 days' salary per year worked awarded at Shs. 25,097/-
  3. 3.Underpayments for the period 1st May, 2010 to 2nd March, 2014 awarded (Shs. 13,817.40 + 26,789.40 + 42,087.60 + 50,484.55)
  4. 4.Compensation for unfair termination of 10 months' gross salary awarded at Shs. 125,485.00
  5. 5.Normal overtime for 12 months awarded at Shs. 244,608
  6. 6.Double-rate overtime for Sundays and public holidays for one year awarded at Shs. 25,977.60

Authorities

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Legislation

  • Employment ActSections 41, 43, 49(1), 49(4), 35(5), 35(6), 26, 90
  • Labour Institutions ActSection 48(1)
  • Regulation of Wages and Conditions of Employment (General) OrderMinimum wage rates for night watchman
  • Regulation of Wages and Conditions of Employment (Private Security Services) OrderHours of work (52 hours per week)

Cases cited (1)

  • Odd Jobs v Mubia
    (1970) EA 476
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim filed as Cause No. 218 of 2014)

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, "Joseph Mikae Ogenda v J.R.S. Group Security Limited [2016] KEELRC 477 (KLR)", Case Analysis (2016). Cause No. 218 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/477/eng@2016-09-15

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