Nyangenya Hezron Nyakeremba, Situma Elvin & Ontiri James v Xfor Security Solutions (Cause 44 of 2015) [2016] KEELRC 573 (KLR)

The Claimants were found asleep on 16th August 2013, wrote apology letters and were issued final written warnings on 17th August 2013, which they accepted. They worked from 17th to 30th August 2013 with no fresh infringement alleged. The dismissal letter merely revisited the same offence, imposing punishment twice. Under Sections 43 and 45 of the Employment Act, the Respondent therefore had no valid reason for the summary dismissal.

The letters of summary dismissal did not show the Claimants were heard before the 30th August 2013 decision; they merely repeated the earlier allegation. The allegations of difficulty in assigning the Claimants to customers did not constitute fresh infringements. The minimum standards of fairness under Sections 41 and 45 of the Employment Act were thus not met, though the procedure leading to the earlier Warning Orders did not need examination since those Orders issued and were accepted.

The Respondent asserted annual leave pay was included in monthly salary, but produced no contractual or legal clauses, pay slips or records showing payment of such an item or utilisation of leave in that mode. It was not denied the Claimants never went on annual leave. In the absence of documentary evidence of payment, the claim succeeded as prayed.

The Respondent offered no documentary evidence that the Claimants were registered with the N.S.S.F - no Statements of Accounts or Pay Slips - and the salary breakdown particulars showed no N.S.S.F deductions. The Court was therefore persuaded the Claimants were entitled to service pay, granted as prayed.