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ELRCDismissedCause No. 771 of 2014· [2016] KEELRC 523 (KLR)

John Mutsumi David v Delta Guards Limited [2016] KEELRC 523 (KLR)

Employment and Labour Relations Court of Kenya
5 May 2016
1,296 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 dismissed a security manager's full claim for terminal dues because he moonlighted for a competitor and abandoned his job.

What this practically means

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Executive summary

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The claimant, employed by the respondent security company from 10 July 2009 rising to Branch Manager, claimed notice pay, leave pay, severance pay, compensation, house allowance and a certificate of service following the end of his employment in March 2014. The respondent's case was that the claimant worked on and off, moonlighted for rival security firms (Sunrise Security and his former employer Sunlight Security), absconded duty in March 2014 and ignored a recall letter dated 28 March 2014 warning of termination. The court held that absconding duty amounts to gross misconduct under section 44(4) of the Employment Act, and that the claimant, while in employment, owed a fiduciary duty not to work against his employer's interests, which he breached by moonlighting for a competitor even during off-duty periods; the absence of an express contractual bar was no answer. On terminal dues, the court found the claimant had taken or been paid all his leave; severance pay does not arise because the dispute did not concern redundancy; house allowance could not be claimed outside mutually agreed contract terms; and compensation is not due where the claimant himself was in breach. An employee who absconds and fails to respond to recall cannot claim notice pay. The claim was dismissed in its entirety except that the claimant was to be issued a Certificate of Service for the last contract served, with each party bearing its own costs. Delivered at Nairobi on 5 May 2016 by M. Mbaru, Judge.

Key legal issues

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01

Whether the claimant's moonlighting for a competitor breached his duty to the employer

Holding

Moonlighting for a rival in similar capacity, even when off duty, breaches the fiduciary duty owed to the employer and constitutes gross misconduct

Reasoning

The court held that during the currency of the employment contract the claimant owed a fiduciary duty involving an obligation not to work against the employer's interests. The claimant admitted working Saturdays for Sunlight Security, a competitor, for Kshs.800. The absence of an express contractual prohibition did not assist him; serving competitors in a similar capacity and justifying it as off-duty work is unacceptable.

p. 2
02

Whether the claimant was terminated or absconded duty

Holding

The claimant absconded duty from 14 March 2014 and, despite a recall letter dated 28 March 2014, failed to resume, so his claim for notice pay fails

Reasoning

The court accepted the respondent's evidence that the claimant deserted work and that the respondent wrote to him recalling him to duty on pain of removal from the pay register. The claimant did not explain his whereabouts after 14 March 2014. An employee who absconds and ignores recall cannot claim notice pay.

p. 2
03

Entitlement to terminal dues (leave, severance, house allowance, compensation)

Holding

All monetary claims fail: leave was taken or paid for, severance does not arise absent redundancy, house allowance is governed by the agreed contract terms, and compensation is unavailable to a claimant in breach

Reasoning

The court found the terms and conditions of employment were mutually agreed and the salary factored in all elements, barring a house allowance claim outside the contract. Severance is a redundancy entitlement and the dispute concerned misconduct, not redundancy. Compensation under section 49 is not due where the claimant himself breached the contract.

p. 3

Legal principles established

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  • Absconding duty constitutes gross misconduct prohibited under section 44(4) of the Employment Act
  • An employee owes a fiduciary duty not to work against his employer's interests, breached by moonlighting for a competitor even during off-duty hours

Court orders

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  1. 1.The claim is dismissed
  2. 2.The claimant to be issued with a Certificate of Service for the last contract served with the respondent
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Employment Actsection 44(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a wrongful dismissal and terminal dues claim (Employment Act; ELRC Act)

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, "John Mutsumi David v Delta Guards Limited [2016] KEELRC 523 (KLR)", Case Analysis (2016). Cause No. 771 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/523/eng@2016-05-05

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