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ELRCPartially AllowedCause No. 1327 of 2013· [2018] KEELRC 233 (KLR)

Kenya National Private Security Workers Union v Kenya Kazi Security Services Limited [2018] KEELRC 233 (KLR)

Employment and Labour Relations Court
6 December 2018
HWHellen S. Wasilwa
1,246 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 security guards were unfairly fired for alleged theft because the employer proved neither valid reasons nor gave them a hearing.

What this practically means

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Executive summary

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The Claimant union filed a Memorandum of Claim on 19/8/2013 on behalf of two grievants, Joshua Mwanza Kisilu and Joseph Mukavi, security guards employed by the Respondent from 28th September 2002, alleging unfair termination. The grievants were suspended in November 2012 following a suspected theft of cushions from a client's residence (Shanzu Gardens, housing Embassy employees) and were subsequently dismissed, the Respondent invoking Section 44(4) of the Employment Act on loss of confidence and trust. The Respondent alleged the grievants could not account for the lost cushions, that the USA Embassy client expressed no confidence in them, and that a hearing did not proceed because union representatives failed to attend. RW1 admitted in cross-examination that the incident was not reported to the police, one grievant was on leave at the material time, the number of cushions lost was unspecified, and the swimming pool attendant who reported the incident was never called as a witness. The court found the employment relationship undisputed, held that the Respondent failed to prove valid reasons under Section 43, and that the grievants were never personally invited to and heard at a disciplinary hearing as required by Section 41. Applying Section 45(2), the court found the terminations unfair and unjustified. Each grievant was awarded one month's salary in lieu of notice (Kshs. 22,160/=), 7 days worked for November 2012 (Kshs. 5,170.7/=), and 8 months' salary as compensation for unlawful termination (Kshs. 177,280/=), totalling Kshs. 204,610.7/=, plus a Certificate of Service. The Respondent was ordered to pay costs with interest at court rates from the date of judgment.

Key legal issues

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01

Valid reasons for termination

Holding

The Respondent failed to prove valid reasons for the termination

Reasoning

The termination letter cited loss of confidence under Section 44(4) based on alleged theft of cushions. The court found no theft was reported to police, no inventory of the lost cushions was exhibited, the swimming pool attendant who reported the incident was not called as a witness, and one grievant was on leave when the incident allegedly occurred. The employer therefore failed to discharge the burden under Section 43.

p. 2
02

Fair procedure - hearing under Section 41

Holding

The grievants were not accorded any hearing as required by Section 41 of the Employment Act

Reasoning

The Respondent claimed the hearing did not proceed because union representatives failed to attend. The court held that there was no indication the grievants themselves were invited to a disciplinary hearing and heard as envisaged under Section 41, which requires the employer to explain the reasons and consider the employee's representations before termination.

p. 2
03

Unfair termination under Section 45(2)

Holding

The termination of the grievants was unfair and unjustified

Reasoning

Section 45(2) places the burden on the employer to prove a valid and fair reason related to conduct, capacity or compatibility or operational requirements, and that fair procedure was followed. Having failed on both substance and procedure, the Respondent's terminations were unfair, entitling the grievants to remedies including notice pay, accrued days and compensation.

p. 2

Legal principles established

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  • An employer must prove both valid reasons for termination and that a fair procedure, including a hearing of the employee, was followed; failure on either renders termination unfair under Section 45(2) of the Employment Act
  • An employee must personally be invited to and heard at a disciplinary hearing; non-attendance by union representatives does not excuse the employer from according the employee a hearing under Section 41 of the Employment Act

Court orders

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  1. 1.Award to each grievant of one month salary in lieu of notice of Kshs. 22,160/=
  2. 2.Award to each grievant of 7 days worked for November 2012 amounting to Kshs. 5,170.7/=
  3. 3.Award to each grievant of 8 months' salary as compensation for unlawful termination amounting to Kshs. 177,280/= (total Kshs. 204,610.7/= per grievant)
  4. 4.Issuance of a Certificate of Service to each grievant
  5. 5.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment Act 2007Section 41(1) and (2)
  • Employment ActSection 43
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 42(1) (referred to in the quotation of Section 41)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 ( unfair termination claim under Sections 41, 43, 44(4) and 45(2))

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, "Kenya National Private Security Workers Union v Kenya Kazi Security Services Limited [2018] KEELRC 233 (KLR)", Case Analysis (2018). Cause No. 1327 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/233/eng@2018-12-06

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