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ELRCAllowedNot stated in the judgment as provided· [2018] KEELRC 1057 (KLR)

George Isaac Odessy v Riley Services Limited [2018] KEELRC 1057 (KLR)

Employment and Labour Relations Court
21 September 2018
MOMAUREEN ONYANGO
1,565 words in judgment
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The bottom line

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Kenya's Employment Court ruled a security guard's firing was unfair because his employer never clearly told him why, or gave him a proper hearing.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent, a private security company, from 18th November 2005 until 3rd July 2013, was terminated following a theft at the Institute of Advanced Technology (IAT) Kasarani on the night of 1st/2nd January 2013, in which monitors, CPUs and LCD screens were stolen. He was arrested, charged with housebreaking at Makadara Magistrate's Court and remanded until released on cash bail on 10th June 2013. The respondent terminated his services citing the incident and the client IAT's termination of its contract. The claimant challenged the termination as unfair, contending he was given no notice to show cause, no disciplinary hearing, and was condemned on unproven criminal charges. The respondent maintained the termination was fair, with a hearing and valid reason. The court identified two issues: whether the termination was unfair and whether remedies were due. It found the termination letter ambiguous as to the actual reason for termination, and the minutes of a meeting of 26th June 2013 failed to show charges, prior notification or a proper hearing before a disciplinary committee. It held there was no hearing as envisaged under Section 41 of the Employment Act and the claimant was never informed of the reasons for termination, rendering the termination unfair under Section 45(2). The court declared the termination unfair and awarded uniform refund of Kshs.4,000, compensation of eight months' salary (Kshs.95,544) for eight years of service, and gratuity of Kshs.66,148.80 under the Regulation of Wages (Protective Security Services) Order, totalling Kshs.165,692.80, with costs to the claimant and interest on the decretal sum from the date of judgment.

Key legal issues

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01

Validity of the reason for termination

Holding

The termination letter was ambiguous - it was not clear whether the reason was the theft, the arrest and charges, the remand, or the termination of the IAT contract; the claimant was thus never informed of the reasons for termination

Reasoning

The court examined the termination letter and found it referred to the theft incident, the arrest, the criminal charge and remand, and the client's termination of the contract, without specifying which constituted the reason for termination. Consequently the employer failed the valid-reason and notification requirements of Sections 41 and 43 of the Employment Act.

p. 3
02

Procedural fairness of the disciplinary process

Holding

There was no hearing as envisaged under Section 41 of the Employment Act; the minutes did not show charges, prior notification, or a properly convened hearing before a disciplinary committee

Reasoning

The handwritten minutes of 26th June 2013 did not state the charges preferred or the evidence against the claimant. No evidence showed he was notified in advance of the hearing date and charges, nor that he attended with the employee representative. He appeared before the Human Resource Officer rather than a disciplinary committee, and in his testimony denied attending a pre-arranged hearing.

p. 3
03

Unfair termination under Section 45(2)

Holding

The termination was unfair in terms of Section 45(2) of the Employment Act

Reasoning

Having found neither a hearing as envisaged under Section 41 nor notification of the reasons for termination, the court concluded that both the procedural and substantive elements of fair termination were absent, rendering the termination unfair under Section 45(2) and warranting the remedies awarded.

p. 3
04

Remedies for unfair termination

Holding

The claimant was awarded eight months' salary as compensation for eight years of service, gratuity of 18 days per year worked under the Regulation of Wages (Protective Security Services) Order, and the unpaid uniform refund differential

Reasoning

Taking into account the circumstances of the termination and the claimant's length of service of eight years, the court awarded eight months' salary as compensation. Gratuity was awarded pursuant to the Protective Security Services Order, Section 26(2) of the Employment Act and Section 49(1)(b) of the Labour Institutions Act. The court also noted the underpayment of uniform refund of Kshs.4,000.

p. 3

Legal principles established

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  • Fair termination under Sections 41, 43 and 45 of the Employment Act requires both fair procedure and a valid reason for termination
  • An employee must be notified in advance of a disciplinary hearing and of the charges against him, and must appear before a properly constituted disciplinary process
  • Where an employee is terminated rather than dismissed for gross misconduct, this indicates the employer did not treat him as guilty of gross misconduct

Court orders

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  1. 1.Declaration that the termination of the claimant's employment by the respondent was unfair
  2. 2.Uniform refund of Kshs.4,000.00
  3. 3.Compensation of eight months' salary in the sum of Kshs.95,544.00
  4. 4.Gratuity of Kshs.66,148.80
  5. 5.Total award of Kshs.165,692.80
  6. 6.The respondent shall pay claimant's costs
  7. 7.Decretal sum shall attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment Act 2007Section 35, 1(c)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 26(2)
  • Labour Institutions ActSection 49(1)(b)
  • Regulation of Wages (Protective Security Services) Ordergratuity of 18 days per year worked
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 35, 41, 43, 45) and the Labour Institutions Act

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, "George Isaac Odessy v Riley Services Limited [2018] KEELRC 1057 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1057/eng@2018-09-21

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