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ELRCPartially AllowedCause (not stated in judgment)· [2016] KEELRC 1719 (KLR)

Jacob Otieno Oduongo v Group 4 Security Services (K) Ltd [2016] KEELRC 1719 (KLR)

Employment and Labour Relations Court
12 February 2016
2,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A security guard won his unfair dismissal case in Kenya but lost his underpayment claim because he filed suit too late.

What this practically means

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Executive summary

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Jacob Otieno Oduongo, a former employee of Group 4 Security Services Ltd, claimed unfair termination and underpayment of wages. His employment was terminated on 8 November 2010 following allegations of fraudulent non-delivery of courier parcels in Nakuru. The Court identified three issues: whether the underpayments claim was statute barred, whether the dismissal was unfair, and appropriate remedies. On limitation, the Court held that underpayment of wages is a continuing injury under section 90 of the Employment Act, 2007, which ceased on termination; suit filed in 2012 was therefore time-barred, and the underpayments claim of Kshs 197,625/35 was declined. On procedural fairness, although the Court found the Respondent's disciplinary minutes had been altered and that the Committee had in fact recommended reinstatement, the Claimant did not seriously challenge the process, and the Court found substantial compliance with section 41 of the Employment Act. On substantive fairness, the investigation report attributed the missing parcels to the Claimant's teammates and showed only doubt as to his active involvement, compounded by the Respondent's weak supervisory controls; the termination was held not to be in accord with justice and equity. The Court awarded one month's pay in lieu of notice, accrued leave, gratuity, October/November 2010 wages and compensation of eight months' gross pay, totalling Kshs 177,400. The claims for underpayments and lost prospective earnings of Kshs 2,086,560 were dismissed. Costs were denied to the Claimant for failure to serve submissions as directed. Judgment was delivered in Nakuru on 12 February 2016 by Radido Stephen, Judge.

Key legal issues

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01

Whether the underpayments claim was statute barred

Holding

Yes - claim filed in 2012 was barred as the continuing injury ceased on termination on 8 November 2011 deadline

Reasoning

Section 90 of the Employment Act, 2007 excludes the general limitation period and requires actions arising from employment contracts to be brought within three years, or within twelve months after cessation for continuing injury. Underpayment was a continuing injury that ceased on termination on 8 November 2010, so suit should have been filed by 7 November 2011.

p. 2
02

Procedural fairness of the dismissal

Holding

Respondent was in substantial compliance with section 41 of the Employment Act

Reasoning

The Claimant was suspended, recorded a statement, and attended a disciplinary hearing with a shop steward present and made representations. Although two conflicting sets of minutes emerged and the Court found the Respondent's minutes altered (the Committee having recommended reinstatement), the Claimant did not lead evidence to genuinely challenge the process, so substantial compliance with section 41 was found.

p. 3
03

Substantive fairness of the dismissal

Holding

Termination was not in accord with justice and equity

Reasoning

The Respondent had to prove valid and fair reasons under sections 43 and 45. The investigation report attributed responsibility for the undelivered parcels to the Claimant's teammates (Mugambi and Kariuki), and there was doubt about the Claimant's active involvement; the Respondent's supervisory systems and controls were weak. Termination on that basis was therefore unjust.

p. 4
04

Appropriate remedies

Holding

One month's notice pay, accrued leave, gratuity, Oct/Nov 2010 wages and 8 months' compensation awarded; underpayments and lost prospective earnings refused

Reasoning

Remedies not dependent on the manner of separation were awarded based on the employer's final dues schedule where the Claimant laid no evidential basis for higher figures. Compensation was discretionary, assessed at 8 months' gross pay of Kshs 12,401 considering about 14 years of service.

p. 5

Legal principles established

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  • Underpayment of wages constitutes a continuing injury under section 90 of the Employment Act, 2007, and the limitation period runs from the cessation of employment
  • An employer bears the burden of proving valid and fair reasons for termination under sections 43 and 45 of the Employment Act, 2007
  • Where evidence shows only doubt as to an employee's active involvement in misconduct and employer systems were weak, termination is not in accord with justice and equity

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was not in accord with justice and equity
  2. 2.Respondent to pay 1 month pay in lieu of notice (Kshs 6,947)
  3. 3.Respondent to pay accrued leave (Kshs 6,227)
  4. 4.Respondent to pay gratuity (Kshs 46,028)
  5. 5.Respondent to pay wages for October/November 2010 (Kshs 18,990)
  6. 6.Respondent to pay compensation of 8 months' wages (Kshs 99,208)
  7. 7.Total award of Kshs 177,400
  8. 8.Claimant denied costs for failing to serve submissions as directed

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 41
  • Employment ActSections 43 and 45
  • Limitation of Actions ActSection 4(1)
  • General Wages Ordernot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "Jacob Otieno Oduongo v Group 4 Security Services (K) Ltd [2016] KEELRC 1719 (KLR)", Case Analysis (2016). Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1719/eng@2016-02-12

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