Evans Magero Chuma v Riley Falcon Security Services Limited [2018] KEELRC 2078 (KLR)
The bottom line
#A Kenyan court ruled a security guard was unfairly fired for alleged desertion because the employer proved nothing and never gave him a hearing, awarding him over Kshs.132,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant deserted duty
No desertion proved; the claimant sought assignment and waited, and the respondent had no proof of the Aga Khan Hospital assignment or its communication to the claimant.
The company had a structured communication system, yet there was no letter instructing the claimant to report to Aga Khan Hospital. The claimant waited at the Operations Manager's office from morning to 5pm and returned after a week without being attended to. The employer failed to prove the assignment or that the claimant wilfully and unjustifiably abandoned duty.
Whether the termination complied with due process
Termination was procedurally and substantively unfair; the claimant was summarily dismissed for desertion without any hearing and without a termination letter.
Sections 41, 43 and 45 of the Employment Act require a hearing before termination. The claimant was dismissed for desertion with no attempt at a hearing, unlike the earlier disciplinary process over the KCB door incident. The burden of justifying termination under Section 47(5) was not discharged, and no termination letter was issued to the claimant.
Remedies entitlement
Compensation of six months' salary awarded under Section 49(4); declaration of continuing employment, salaries from 2009, one year's salary and reinstatement refused; leave, gratuity and notice pay awarded under the Protective Security Services Order.
The court considered length of service (2009 to December 2014), the manner of termination and Section 49(4) factors in fixing six months' gross salary. Terminal benefits were computed per the Regulation of Wages (Protective Security Services) Order: 26 days annual leave per year, gratuity at 18 days per year worked after five years' continuous service, and one month's gross salary in lieu of notice.
Legal principles established
#- Desertion must be a wilful and unjustified abandonment of duty and must be proved by the employer.
- An employee must be given a hearing before termination for whatever reason, per the mandatory provisions of Section 41 of the Employment Act.
- Termination without a hearing and without proof of the alleged reason is both procedurally and substantively unfair.
- Terminal benefits constitute the minimum basic terms of employment set out under the law, including the Regulation of Wages (Protective Security Services) Order.
Court orders
#- 1.Declaration that the summary dismissal of the claimant by the respondent was unfair
- 2.Compensation of Kshs.84,691.20 equivalent to 6 months' gross salary
- 3.Kshs.8,270 being 26 days annual leave based on last basic salary of shs.9,542
- 4.Gratuity of shs.28,626 based on last basic salary
- 5.One month's gross salary in lieu of notice at Kshs.11,394
- 6.Judgment for the claimant against the respondent in the total sum of Kshs.132,981.20 with costs and interest
- 7.Respondent to pay claimant's costs of the suit; decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Magero Chuma v Riley Falcon Security Services Limited [2018] KEELRC 2078 (KLR)", Case Analysis (2018). Cause No. 192 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2078/eng@2018-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.