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ELRCPartially AllowedCause No 2257 of 2015· [2018] KEELRC 489 (KLR)

Florence Oloo v G4s Security (K) Limited [2018] KEELRC 489 (KLR)

Employment and Labour Relations Court
30 November 2018
654 words in judgment
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The bottom line

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A security guard who resigned due to ill-health won her gratuity because her employer couldn't produce the resignation letter it admitted receiving.

What this practically means

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Executive summary

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The claimant, employed as a guard from 30.09.2008 at a last gross monthly pay of Kshs.14,054.00, resigned on 17.06.2015 on account of ill health and sued for terminal dues: gratuity/service pay of Kshs.59,031.00 for 7 years, pay for public holidays worked of Kshs.36,074.00, leave pay for 9 months of Kshs.12,649.00, a certificate of service and costs. The respondent's case was that the claimant's service was governed by the Regulation of Wages (Protective Security Services) Order, 1998, under which an employee who terminates service for any reason other than certified ill-health or retirement age forfeits gratuity. The claimant testified that her ill-health involved loss of her voice, her manager had advised her to resign with a promise of resuming duty, and she was later locked out; the respondent confirmed receiving her resignation letter citing ill-health but failed to produce it. The court found on a balance of probability that she resigned on account of ill-health known to the respondent and awarded her the full gratuity of Kshs.59,031.00. However, the claims for public holidays and leave pay failed, the former because payslips showed the overtime was paid monthly and the latter for want of evidence on computation, the respondent having shown leave was taken. The court found the claimant entitled to a certificate of service under section 51 of the Employment Act. Judgment was entered for the claimant for Kshs.59,031.00 with interest from 17.06.2015 in default of payment by 31.12.2018, delivery of a certificate of service, and costs of the suit.

Key legal issues

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01

Whether the claimant's resignation was on account of certified ill-health so as to entitle her to gratuity under Regulation 10 of the Regulation of Wages (Protective Security Services) Order, 1998

Holding

The court found on a balance of probability that the claimant resigned on account of ill-health, which the respondent knew, and awarded her the gratuity of Kshs.59,031.00 claimed

Reasoning

The claimant testified she resigned due to ill-health involving loss of her voice, that her manager advised her to resign with a promise of resuming duty, and that she was later locked out. The employer admitted receiving her resignation letter citing ill-health but failed to file or exhibit it. On a balance of probability the claimant established her case and was entitled to gratuity under Regulation 10(1) notwithstanding Regulation 10(2).

p. 1
02

Whether the claimant was entitled to payment for public holidays worked

Holding

The claim failed because the payslips showed the overtime was paid monthly

Reasoning

The respondent's evidence that overtime was paid monthly was corroborated by the pay slips, and the claimant offered no contrary evidence, so the claim for public holidays worked and not paid was rejected.

p. 2
03

Whether the claimant was entitled to leave pay for 9 months

Holding

The claim failed for want of evidence on the computation of leave days, the respondent having shown leave had been taken

Reasoning

The respondent exhibited evidence that the claimant had taken leave, and the claimant gave no evidence on how the claimed leave days were computed, so the prayer was not justified and failed.

p. 2
04

Whether the claimant was entitled to a certificate of service

Holding

Yes, as prayed for, per section 51 of the Employment Act

Reasoning

Section 51 of the Employment Act obliges an employer to issue a certificate of service, and the court found the claimant entitled to it as prayed.

p. 2

Legal principles established

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  • An employee who resigns on account of certified ill-health remains entitled to gratuity under Regulation 10 of the Regulation of Wages (Protective Security Services) Order, 1998
  • Where a party fails to produce a document it received, the court may draw an adverse inference against it on a balance of probability

Court orders

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  1. 1.The respondent to pay the claimant a sum of Kshs.59,031.00 by 31.12.2018 failing interest to be payable thereon from the last day at work 17.06.2015 until full payment
  2. 2.The respondent to deliver to the claimant a certificate of service by 31.12.2018
  3. 3.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Regulation of Wages (Protective Security Services) Order, 1998Regulation 10(1) and 10(2)
  • Employment ActSection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (section 51 cited)

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, "Florence Oloo v G4s Security (K) Limited [2018] KEELRC 489 (KLR)", Case Analysis (2018). Cause No 2257 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/489/eng@2018-11-30

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