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ELRCPartially AllowedCause No 473 of 2015· [2017] KEELRC 1736 (KLR)

Moraa Marcella Motieri v Crest Security Services Limited [2017] KEELRC 1736 (KLR)

Employment and Labour Relations Court (Industrial Court)
24 February 2017
2,368 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent on periodic contracts captured in a poorly crafted 'Sub-Contract' dated 24th January 2014, claimed she was unfairly terminated without a hearing after falling ill and failing to report to a new assignment at Milly Glass Company. She sought notice pay, salary for the unexpired contract term, house allowance arrears, April 2015 salary, uniform deductions refund, public holiday pay, compensation of 12 months' salary, a declaration of unfair termination, a Certificate of Service, costs and interest. The Respondent maintained she was lawfully dismissed for gross misconduct — insubordination after refusing a transfer — and that she was heard. The Respondent's own witnesses conceded under cross-examination that there was no written transfer letter, no signed contract and no hearing. The Court held that although termination was based on a valid ground — insubordination, incompatibility and disruptive conduct, evidenced by her failure to report to the new site and her apology letter — the procedure was unfair because Section 41 of the Employment Act requires presentation of charges and a hearing before a fellow employee or trade union representative, which did not occur; the informal explanation to the Operations Manager and Supervisor was insufficient. Compensation of 3 months' salary, notice pay, house allowance arrears at 15% of basic salary for 15 months, April 2015 salary and uniform refund were awarded, totalling Kshs. 83,750. The claims for unexpired contract term and public holiday pay failed. A Certificate of Service was ordered, with no order on costs and interest at 14% per annum from the date of judgment until payment in full.

Key legal issues

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01

Validity of the reason for termination

Holding

Termination was based on a valid ground — insubordination, incompatibility and disruptive conduct after refusal to report to the new assignment

Reasoning

The Claimant admitted she did not report to Milly Glass as instructed. Her apology letter acknowledged collision with her Seniors, and her 'Statement of Absenteeism' alluded to grievances against her Seniors, suggesting incompatibility and insubordination. The Court found these valid termination grounds under Section 45(2)(b) of the Employment Act, relying on the Amanor-Wilks decision on conduct and compatibility.

p. 4
02

Fairness of procedure under Section 41

Holding

Procedure was unfair; the informal engagement with the Operations Manager and Supervisor did not satisfy Section 41

Reasoning

Though the Claimant admitted she was given a chance to explain, Section 41 demands presentation of charges and a hearing in the presence of a fellow employee or trade union representative. There was no disciplinary panel and no record of charges. Her explanation was an informal engagement with the very managers against whom she had grievances.

p. 4
03

House allowance

Holding

Claim for house allowance arrears allowed at 15% of basic salary for 15 months

Reasoning

The 'Sub-Contract' did not indicate that the salary was consolidated. Pay slips showed a basic salary of Kshs. 10,000 with only Kshs. 1,500 attributed to house allowance. Under Section 31 of the Employment Act and the General Wages Order, the shortfall was awarded at 15% of basic salary as prayed.

p. 5
04

Holiday pay

Holding

Claim for public holidays worked rejected for lack of proof

Reasoning

Details of the holidays worked were not provided to enable the Court make a reasonable finding. Pay slips showed an item described as 'extra days' already paid, and the Claimant did not discharge the burden of satisfying the Court on this head of claim.

p. 5

Legal principles established

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  • An oral instruction given by a superior is as binding as a written one if issued lawfully and reasonably
  • Section 41 of the Employment Act requires more than an informal explanation; charges must be presented and the employee heard in the presence of a fellow employee or trade union representative
  • An employee is entitled to refund of uniform deductions at the end of service

Court orders

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  1. 1.It is declared termination was based on valid ground, but unfair procedure, therefore unfair
  2. 2.The Respondent shall pay the Claimant the equivalent of 3 months' salary in compensation for unfair termination at Kshs. 34,500
  3. 3.Notice pay at Kshs. 11,500
  4. 4.House allowance in arrears at Kshs. 22,500
  5. 5.April 2015 salary at Kshs. 10,000
  6. 6.Uniform refund at Kshs. 5,250 — total Kshs. 83,750
  7. 7.Certificate of Service to issue
  8. 8.No order on the costs
  9. 9.Interest granted at 14% per annum from the date of Judgment till payment in full

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45 [including 45(2)(b)]
  • Employment Act 2007Section 36
  • Employment Act 2007Section 31
  • Employment Act 2007Section 51
  • General Wages Ordernot specified

Cases cited (3)

  • Loice Otieno v. Kenya Commercial Bank Limited
    Nairobi Industrial Court Cause Number 1050 of 2011
  • Joseph Onyango Asere v. Brookside Dairy Limited
    [2016] e-KLR
  • Dede Esi Annie Amanor-Wilks v. Actionaid International
    Industrial Court of Kenya at Nairobi, Cause Number 635 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007)

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, "Moraa Marcella Motieri v Crest Security Services Limited [2017] KEELRC 1736 (KLR)", Case Analysis (2017). Cause No 473 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1736/eng@2017-02-24

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