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ELRCDismissedNot stated in the judgment text· [2018] KEELRC 668 (KLR)

Anthony Munyasya & 5 others v Brinks Security Services Ltd [2018] KEELRC 668 (KLR)

Employment and Labour Relations Court
8 November 2018
LNLinnet Ndolo
2,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that security guards who refused re-deployment and walked off the job abandoned their employment, so their unfair termination claims failed.

What this practically means

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Executive summary

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Six security guards claimed unfair termination and terminal dues after their employment with the Respondent ended in August 2015. Each sought notice pay, leave pay, outstanding salary and twelve months' compensation, plus costs and interest. The Respondent admitted the employment relationship and salaries but contended that following expiry of its contract with its client, Buzeki, the Claimants were notified of re-deployment to Nairobi and deserted duty without notice or resignation. It counterclaimed for pay in lieu of notice, NHIF and NSSF contributions, and the cost of unreturned uniforms and equipment. The claims and counterclaim were partially settled by consent recorded before Makau J on 19th October 2017, leaving only the unfair termination and notice pay questions. The court, applying section 47(5) of the Employment Act, 2007, held that the burden of proving unfair termination lay on the Claimants, citing George Onyango Akuti v G4S Security Services Kenya Ltd. The Claimants admitted awareness of the re-deployment decision but gave shifting reasons - unsigned letters, lack of transport and accommodation, and family ties in Mombasa - for not reporting to Nairobi, and made no effort to do so. The court found they had declined re-deployment and walked away from their employment, so no unfair termination occurred; their claims for compensation and notice pay failed. The Respondent's counterclaim for notice pay was likewise defeated by its own decision to summarily dismiss the Claimants. Both claim and counterclaim were dismissed save for the recorded consent, with each party bearing their own costs.

Key legal issues

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01

Whether the Claimants were unfairly terminated

Holding

Claim dismissed; the Claimants deserted employment after declining re-deployment and failed to discharge their burden under s. 47(5)

Reasoning

Following expiry of the Buzeki contract, the Respondent notified the Claimants of re-deployment to Nairobi. The Claimants gave varying reasons for not reporting but made no effort to do so. Having chosen to walk away from their employment, they cannot claim that termination was unlawful; the burden of proving unfair termination rests on the employee under section 47(5) of the Employment Act, 2007.

p. 6
02

Entitlement to notice pay

Holding

Claimants' claim for notice pay dismissed; Respondent's counterclaim for notice pay also fails

Reasoning

Since the Claimants were not terminated but deserted their employment, their claim for notice pay fails. Conversely, the Respondent's counterclaim for pay in lieu of notice was defeated by its own subsequent decision to summarily dismiss the Claimants for failing to report to Nairobi.

p. 6

Legal principles established

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  • An employee claiming unfair termination bears the burden of proving that unfair termination occurred, under section 47(5) of the Employment Act
  • An employee who declines re-deployment and abandons employment cannot claim compensation for unfair termination

Court orders

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  1. 1.The Claimants' claim is dismissed save for the consent recorded before Makau J on 19th October 2017
  2. 2.The Respondent's counterclaim is dismissed save for the said consent
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (s. 47(5) applied)

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, "Anthony Munyasya & 5 others v Brinks Security Services Ltd [2018] KEELRC 668 (KLR)", Case Analysis (2018). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/668/eng@2018-11-08

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