Chrisantus Shiwundu Nangira v Brinks Security Services Litd [2016] KEELRC 1516 (KLR)
The bottom line
#An employer that quietly stops a worker's salary after a workplace injury without valid reason or process must pay compensation for unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was dismissed after sustaining injury in the course of employment
The court found the Claimant was fit, reported back to work severally, and was wrongfully and without justification dismissed by the Respondent.
The Claimant was discharged from hospital and attended outpatient clinics until February 2013 but was not allowed to resume duties; his salary was stopped and he was not recalled. The Respondent failed to produce any letter requesting a medical check-up or explaining why his services were no longer required. RW1 had no personal knowledge, having been employed after the Claimant left. The Claimant therefore proved dismissal on a balance of probability.
Whether the dismissal was for a valid reason and effected fairly
The dismissal was not for a valid reason and the manner of its effect was not fair, violating Sections 41, 43 and 45 of the Employment Act.
The Respondent produced no letter requesting the Claimant to attend a medical check-up or advising him why his employment was no longer desired. The court also disbelieved the assertion that the Claimant failed to co-operate in the workman compensation claim, since RW1 lacked personal knowledge of the events. Accordingly, the procedural and substantive fairness requirements of the Employment Act were breached.
Whether the Claimant is entitled to compensation under Section 49 of the Employment Act
The Claimant is entitled to compensation under Section 49(1)(c) as read with Section 49(4), and the court awarded ten months' salary.
The dismissal was wrongful and unfair; no terminal benefits or notice were given; no certificate of service issued to enable him seek alternative employment; and the dismissal was solely for injuries sustained in the course of duty. These factors justified an award of ten months' salary as compensation.
Legal principles established
#- A dismissal effected without notice, without a termination letter, without a certificate of service and without payment of terminal benefits, and for no valid reason, is wrongful and unfair under Sections 41, 43 and 45 of the Employment Act.
Court orders
#- 1.Award of 10 months' salary as compensation for wrongful and unfair dismissal, Kshs 120,000
- 2.Kshs 12,000 in lieu of notice not given
- 3.One month's salary, Kshs 12,000, in lieu of one year's leave not taken
- 4.Total award of Kshs 144,000 payable with interest at court rates from date of filing suit till payment in full
- 5.Respondent to provide the Claimant with a certificate of service within 30 days from date of judgment
- 6.Respondent to pay the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45 and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chrisantus Shiwundu Nangira v Brinks Security Services Litd [2016] KEELRC 1516 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1516/eng@2016-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.