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ELRCPartially AllowedCause No. 1155 of 2014· [2016] KEELRC 1541 (KLR)

Maurice Wandera Egesa v Inter-Security Service Limited [2016] KEELRC 1541 (KLR)

Employment and Labour Relations Court
16 February 2016
1,814 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 that firing a security guard just before his retirement took effect was unfair, awarding him over Kshs.200,000 in terminal dues.

What this practically means

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Executive summary

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The claimant, employed as a security guard by the respondent from 16 August 2008, gave three months' notice of early retirement on 14 July 2013, intending to retire on 1 October 2013. He was terminated on 22 September 2013 before the notice matured, and his terminal dues were not paid. The respondent's defence was that the claimant verbally resigned and abandoned his duties, but it called no evidence and produced no work records beyond an NSSF deduction record and a payslip. The court held that sections 74 and 79 of the Employment Act mandatorily require employers to keep work records, and failure to produce them in a dispute must be interpreted to the advantage of the employee, leaving the defence bare. The court found the claimant had tendered notice to retire and that the allegation of absconding was unsupported. Terminating him before the notice matured to frustrate him, and failing to pay dues, was held to be inhuman, degrading, contrary to fair labour practices, and unfair termination without justification. The court adopted the payslip salary of Kshs.9,295.00 basic pay for computation, awarded notice pay, service gratuity of 15 days per year, overtime for 20 hours per week, rest day work, 21 days annual leave under section 28, house allowance, uniform and welfare refunds, and compensation of three months' salary for unfair termination. Claims for public holiday work and underpayment were declined. Judgment was entered for the claimant with each party bearing their own costs.

Key legal issues

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01

Employer's duty to keep work records under sections 74 and 79 of the Employment Act

Holding

The respondent filed a bare defence without work records and failed to attend court, so the claimant's uncontroverted evidence prevails

Reasoning

Section 74 obliges an employer to keep written records of employees including salary, deductions, hours of work, rest days and leave; section 79 requires a register of employees. Where an employer files a defence but produces no such records and fails to attend court to controvert the employee's evidence, the defence is left bare and the failure to produce records is interpreted to the employee's advantage. Only an NSSF deduction record and a payslip were submitted, which lacked the required details.

p. 2
02

Whether the termination was unfair

Holding

Terminating the claimant before his retirement notice matured, without reasons, and failing to pay terminal dues was unfair and inhumane

Reasoning

The respondent's assertion that the claimant absconded was unsupported by any attendance record, recall notice or misconduct notice. The court accepted that the respondent knew of the claimant's impending exit from July 2013. Terminating him before the notice date to frustrate him, and then withholding his dues, was inhuman, degrading, contrary to fair labour practices, and without justification under any law or policy.

p. 3
03

Computation of terminal dues and the applicable salary

Holding

The applicable salary for computation was Kshs.9,295.00 basic pay per the respondent's payslip, not the Kshs.6,400 claimed

Reasoning

The claimant's pleaded salary changed between the initial claim (Kshs.9,295) and the amended claim (Kshs.6,400). The respondent's payslip indicated Kshs.9,295 as basic pay. The court adopted the payslip figure. Notice pay, service gratuity (15 days per year), overtime, rest days, annual leave (21 days under section 28), house allowance, uniform and welfare refunds were awarded; underpayment and public holiday claims were declined.

p. 3

Legal principles established

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  • An employer who fails to keep and produce work records as required by sections 74 and 79 of the Employment Act bears the adverse consequences in a dispute over employee dues
  • Terminating an employee who has given notice of retirement before the notice matures, without reasons and without paying terminal dues, is unfair termination

Court orders

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  1. 1.Compensation awarded at Kshs.27,885.00
  2. 2.Notice pay Kshs.9,295.00
  3. 3.Service gratuity Kshs.23,237.00
  4. 4.Rest days Kshs.18,580.00
  5. 5.Annual leave Kshs.32,532.00
  6. 6.House allowance Kshs.85,655.00
  7. 7.Uniform refund Kshs.1,300.00
  8. 8.Welfare refund Kshs.4,960.00
  9. 9.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 74(1)
  • Employment Actsection 79
  • Employment Actsection 28
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; employer's failure to pay terminal dues upon termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Maurice Wandera Egesa v Inter-Security Service Limited [2016] KEELRC 1541 (KLR)", Case Analysis (2016). Cause No. 1155 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1541/eng@2016-02-16

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