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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 1681 (KLR)

Onesmus Kimanzi Mutemi v Texas Alarms (K) Limited [2018] KEELRC 1681 (KLR)

Employment and Labour Relations Court
22 February 2018
OMONESMUS MAKAULNLINNET NDOLO
2,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a security guard was unfairly dismissed because his employer skipped a hearing and failed to call its witnesses.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from December 2009 and confirmed permanent in September 2013, sued for terminal dues and compensation for unfair termination, claiming he was suspended on 18 July 2016 pending investigations at his post at Pan Afric Building and never recalled, while the Respondent contended he was summarily dismissed on 28 July 2016 for absconding duty from 17 July 2016. The court framed two issues: whether the contract was unfairly terminated and whether the reliefs sought were payable. Holding that the burden under section 47(5) of the Employment Act lay first on the employee and then shifted to the employer, the court found the claimant had proved unfair dismissal on a balance of probability: he did not abscond but was suspended pending investigations and his July 2016 salary went unpaid despite demand. The employer's account failed because the supervisor, Assistant HR Manager and secretary who allegedly summoned and contacted the claimant were not called, rendering RW1's evidence hearsay and too weak to justify the termination. Further, RW1 admitted the claimant was never invited to a hearing, contrary to the mandatory requirements of section 41 of the Employment Act, so the summary dismissal was procedurally unfair. The court declared the termination unfair and awarded one month's salary in lieu of notice (Kshs.12,680), six months' compensation under section 49 (Kshs.76,080), 15 days' July 2016 salary (Kshs.7,315.50), accrued leave for 2014/2015 and 2015/2016 (Kshs.17,811.23), and a certificate of service under section 51. The NSSF refund claim was dismissed for lack of evidence of deductions. Judgment was entered for the claimant in the sum of Kshs.113,886.75 plus costs and interest.

Key legal issues

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01

Whether the summary dismissal for absconding was for a valid and fair reason

Holding

The claimant proved on a balance of probability that he was suspended pending investigations and did not abscond; the respondent failed to prove absconding because key witnesses were not called, rendering RW1's evidence hearsay.

Reasoning

The respondent alleged absconding from 17.7.2016. The claimant gave a consistent account of being told not to report on 17.7.2016 and of suspension on 18.7.2016 pending investigations. The supervisor, Assistant HR Manager and secretary who allegedly summoned and contacted the claimant never testified. The employer's unsupported hearsay account could not discharge the burden under sections 43 and 45 of the Employment Act.

p. 2
02

Whether the termination procedure was fair

Holding

The dismissal was procedurally unfair because the claimant was never invited to a hearing before summary dismissal.

Reasoning

RW1 admitted the claimant was never invited for a hearing on the alleged absconding. Section 41 of the Employment Act mandates that before dismissal for misconduct, the employer explains the reason in a language the employee understands and invites the employee, in the presence of a companion of his choice, to make representations. Breach of this mandatory provision rendered the termination unfair and wrongful.

p. 3
03

Reliefs payable on a finding of unfair termination

Holding

Salary in lieu of notice, six months' compensation under section 49, July 2016 salary for 15 days, accrued leave for 2014/2015 and 2015/2016, and a certificate of service were awarded; the NSSF refund claim failed for want of evidence.

Reasoning

The court exercised its discretion under section 49, considering the length of service and absence of proven misconduct contributing to the termination. Leave was awarded only for the years claimed and proved; the claimant admitted utilising 2013 leave. The certificate of service is a statutory entitlement under section 51. The NSSF refund lacked evidentiary support of deductions from salary.

p. 3

Legal principles established

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  • The burden of proving unfair termination lies on the employee under section 47(5) of the Employment Act, after which the burden shifts to the employer to prove and justify the reason for termination and the fairness of the procedure followed.
  • Section 41 of the Employment Act mandatorily requires an employer to explain the reason for termination and invite the employee to make representations before dismissal for misconduct; failure renders the dismissal unfair.
  • Where an employer relies on witnesses who are not called to testify, the employer's evidence is hearsay and too weak to discharge the burden of proving the reason for termination.
  • A certificate of service is the right of every employee under section 51 of the Employment Act.

Court orders

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  1. 1.Declaration that the termination of the Claimant's contract of service was unfair
  2. 2.One month's salary in lieu of notice of Kshs.12,680
  3. 3.Compensation for unfair termination of six months' salary being Kshs.76,080
  4. 4.Salary for 15 days worked in July 2016 being Kshs.7,315.50
  5. 5.Accrued leave for 2014/2015 and 2015/2016 being Kshs.17,811.23
  6. 6.Certificate of service to be issued to the Claimant
  7. 7.Judgment for the Claimant in the sum of Kshs.113,886.75 plus costs and interest

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 45
  • Employment Actsection 45(2)
  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 49
  • Employment Actsection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (termination of contract of service claim)

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, "Onesmus Kimanzi Mutemi v Texas Alarms (K) Limited [2018] KEELRC 1681 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1681/eng@2018-02-22

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