Godana Jilo Jirmo v Kartar Singh Construction Limited [2018] KEELRC 897 (KLR)
The bottom line
#A Kenyan court ruled a guard was unfairly fired because of his ethnicity and awarded him over Kshs. 768,000.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimant's employment (night guard or day guard)
The claimant was a night guard employed from 05.06.2005 to 19.06.2010; the respondent's own submissions admitted night-guard work
The claimant's testimony that he was a night guard was credible. The respondent's own submission admitted the claimant worked as a night guard at the construction site during the pendency of the construction work, contradicting its witness RW who claimed he was a day guard. The court found the persistent contradictory positions of the respondent rendered the defence case incredible.
Fairness of the termination
The termination was unfair and discriminatory on account of ethnicity, contrary to sections 5(3)(a) and 45 of the Employment Act, 2007
RW's account that employment lapsed on completion of the construction work was inconsistent with the pleadings, which alleged the claimant deserted in 2008 and was not entitled to notice. RW's own evidence of two months' notice further contradicted the pleadings. The court found the true reason was the claimant's ethnicity, which is prohibited discrimination and not a valid reason for termination under section 45.
Remedies entitlement
The claimant was entitled to underpayment under the applicable Wages Orders, notice pay, leave, public holiday and overtime dues, plus maximum 12 months' compensation and a certificate of service
The claimant cited the relevant Regulation of Wages (Building and Construction) Industry Orders for 2004-2010 and was awarded underpayment as computed in the memorandum of claim. Leave was never granted and the statutory two months' notice was not served. Rest days, public holidays and overtime were established. The discriminatory termination, clean record of over 5 years and absence of contributory fault justified the maximum 12 months' gross salary compensation.
Legal principles established
#- Termination of employment on account of ethnicity amounts to discrimination contrary to section 5(3)(a) of the Employment Act, 2007 and renders the dismissal unfair under section 45
- A dismissal is unfair where the reason does not relate to operational requirements or the employee's conduct, capacity or compatibility under section 45 of the Employment Act
Court orders
#- 1.The declaration that the termination of the claimant's employment by the respondent on 19.06.2010 was unfair and unlawful
- 2.The respondent to pay the claimant a sum of Kshs. 768,892.35 by 15.12.2018 failing which interest to be payable thereon from the date of the judgment till full payment
- 3.The respondent to deliver a certificate of service by 15.11.2018
- 4.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godana Jilo Jirmo v Kartar Singh Construction Limited [2018] KEELRC 897 (KLR)", Case Analysis (2018). Cause No 1339 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/897/eng@2018-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.