Moraa Marcella Motieri v Crest Security Services Limited [2017] KEELRC 1736 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
Termination was based on a valid ground — insubordination, incompatibility and disruptive conduct after refusal to report to the new assignment
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.
Fairness of procedure under Section 41
Procedure was unfair; the informal engagement with the Operations Manager and Supervisor did not satisfy Section 41
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.
House allowance
Claim for house allowance arrears allowed at 15% of basic salary for 15 months
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.
Holiday pay
Claim for public holidays worked rejected for lack of proof
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.
Legal principles established
#- 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
#- 1.It is declared termination was based on valid ground, but unfair procedure, therefore unfair
- 2.The Respondent shall pay the Claimant the equivalent of 3 months' salary in compensation for unfair termination at Kshs. 34,500
- 3.Notice pay at Kshs. 11,500
- 4.House allowance in arrears at Kshs. 22,500
- 5.April 2015 salary at Kshs. 10,000
- 6.Uniform refund at Kshs. 5,250 — total Kshs. 83,750
- 7.Certificate of Service to issue
- 8.No order on the costs
- 9.Interest granted at 14% per annum from the date of Judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.