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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1708 (KLR)

Erickson Ouma v Perfect Scan (K) Ltd [2016] KEELRC 1708 (KLR)

Employment and Labour Relations Court
12 February 2016
OMOnesmus Makau
908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A security guard who resigned still won his unpaid leave, allowances and certificate of service, but lost service pay because NSSF contributions were made.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a security guard on 14.1.2008 and promoted to supervisor in 2009, sued for accrued terminal dues and a certificate of service, contending that he voluntarily resigned effective 19.3.2014 after serving a resignation notice dated 15.2.2014. The respondent admitted employing him but asserted that he was summarily dismissed on 18.3.2014 for gross misconduct and that any dues were set off against losses from his alleged misconduct. The claimant testified; the respondent called no witnesses. The court found the claimant's evidence unrebutted and held that he voluntarily resigned, dismissing the allegation of gross misconduct for want of evidence. Because the resignation was voluntary, the court declined to declare the termination unlawful. On relief, the court awarded kshs. 24,150 for leave accrued over the three years preceding suit, applying the three-year limitation bar in section 90 of the Employment Act; kshs. 1,200 as refund of welfare deductions; kshs. 4,200 as refund of uniform levy; and kshs. 9,600 as bicycle allowance. The claim for service pay was dismissed because the claimant admitted NSSF contributions, disqualifying him under section 35(6) of the Employment Act, and he was further barred from gratuity by Rule 17 of the Regulations of Wages (Protective Security Services) Order 1998 as an employee who terminated services for reasons other than certified ill-health or retirement age. The prayer for a certificate of service was granted as a statutory right under section 51. Judgment was entered for the claimant for kshs. 39,150, a certificate of service, costs and interest, delivered at Mombasa on 12 February 2016 by Onesmus Makau J.

Key legal issues

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01

Whether the claimant resigned or was unlawfully dismissed

Holding

The claimant voluntarily resigned effective 19.3.2014; the dismissal allegation failed for want of evidence

Reasoning

The respondent, despite pleading summary dismissal for gross misconduct, called no witnesses. The claimant's unrebutted testimony showed he served a resignation notice on 15.2.2014, was allowed to serve his notice period and cleared with the company. The receipt of the resignation notice was admitted in the defence. The claim of gross misconduct therefore collapsed for lack of evidence.

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02

Entitlement to terminal dues following voluntary resignation

Holding

Leave for 3 years, welfare deductions, uniform levy and bicycle allowance awarded; service pay refused; certificate of service granted

Reasoning

Because the claimant resigned, no declaration of unlawful termination issued. Leave accruals were limited to three years by the section 90 limitation bar. Service pay was barred by section 35(6) Employment Act given NSSF contributions, and gratuity barred by Rule 17 of the Protective Security Services Order since he terminated services voluntarily. A certificate of service was awarded as a statutory right under section 51.

p. 2

Legal principles established

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  • Unrebutted evidence stands; a respondent who calls no witness cannot sustain an allegation of dismissal for gross misconduct
  • An employee who resigns is not entitled to service pay where NSSF contributions were made, under section 35(6) Employment Act
  • Under Rule 17 of the Regulations of Wages (Protective Security Services) Order 1998, an employee who terminates his services for any reason other than certified ill-health or retirement age is not entitled to a gratuity
  • Certificate of service is a statutory right of every employee under section 51 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant in the sum of kshs. 39,150/= (leave for 3 years kshs. 24,150; welfare deductions refund kshs. 1,200; uniform levy refund kshs. 4,200; bicycle allowance kshs. 9,600)
  2. 2.Claimant to be issued with a certificate of service
  3. 3.Costs of the suit to the claimant
  4. 4.Interest on the awarded amount

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 35(6)
  • Employment Actsection 51
  • Regulations of Wages (Protective Security Services) OrderRule 17
Jurisdiction invoked
First-instance claim under the Employment Act (Employment and Labour Relations Court jurisdiction)

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, "Erickson Ouma v Perfect Scan (K) Ltd [2016] KEELRC 1708 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1708/eng@2016-02-12

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