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ELRCPartially AllowedCause No. 192 of 2015· [2018] KEELRC 2078 (KLR)

Evans Magero Chuma v Riley Falcon Security Services Limited [2018] KEELRC 2078 (KLR)

Employment and Labour Relations Court
3 May 2018
2,355 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, a security guard employed by the respondent from 2009 on successive short contracts and latterly a one-year contract, sued for unfair dismissal after his services ended in December 2014. He sought a declaration that he was still an employee or compensation, unpaid salaries since 2009, reinstatement, costs and interest. The respondent contended that the claimant deserted duty by failing to report to an assignment at Aga Khan Hospital, justifying summary dismissal under Section 44(4) of the Employment Act. The court framed three issues: desertion, due process, and entitlement to remedies. On the evidence, the court found no proof of desertion: the respondent produced no dispatch slip or letter communicating the Aga Khan Hospital assignment, and the claimant's conduct - waiting at the office and returning to inquire - was inconsistent with wilful abandonment. Further, the claimant was summarily dismissed without any hearing, contrary to the mandatory provisions of Section 41, rendering the termination procedurally and substantively unfair. The court awarded compensation equivalent to six months' gross salary (Kshs.84,691.20) under Section 49(4), plus 26 days' leave (shs.8,270), gratuity (shs.28,626) and one month's salary in lieu of notice (Kshs.11,394) under the Regulation of Wages (Protective Security Services) Order. Claims for a declaration of continuing employment, salaries since 2009, one year's salary and reinstatement were refused. Total judgment of Kshs.132,981.20 was entered with costs and interest from the date of judgment.

Key legal issues

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01

Whether the claimant deserted duty

Holding

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.

Reasoning

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.

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02

Whether the termination complied with due process

Holding

Termination was procedurally and substantively unfair; the claimant was summarily dismissed for desertion without any hearing and without a termination letter.

Reasoning

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.

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Remedies entitlement

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Declaration that the summary dismissal of the claimant by the respondent was unfair
  2. 2.Compensation of Kshs.84,691.20 equivalent to 6 months' gross salary
  3. 3.Kshs.8,270 being 26 days annual leave based on last basic salary of shs.9,542
  4. 4.Gratuity of shs.28,626 based on last basic salary
  5. 5.One month's gross salary in lieu of notice at Kshs.11,394
  6. 6.Judgment for the claimant against the respondent in the total sum of Kshs.132,981.20 with costs and interest
  7. 7.Respondent to pay claimant's costs of the suit; decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 44(4)(a) and (b)
  • Employment ActSections 41, 43 and 45
  • Employment ActSection 49(4)
  • Employment ActSection 24
  • Regulation of Wages (Protective Security Services) Orderannual leave at 26 days a year and gratuity at 18 days per year worked for a minimum of 5 years

Cases cited (6)

  • Pamela K. Butalanyi -vs- University Council for Kenya Polytechnic College
    Cause 1601 of 2011
  • Mary Chemweno Kiptui -vs- Kenya Pipeline Company Limited
    Cause 435 of 2013
  • Kenya Union of Commercial, Food and Allied Workers -vs- Meru North Farmers SACCO Limited
    Cause 74 of 2013
  • Evans Ochieng Oluoch -vs- Njimia Pharmaceuticals Limited
    Cause 1401 of 2011
  • Geoffrey Mwingi -vs- Ruaken Investments Limited
    Cause 1658 of 2012
  • SBI International Holdings Ag (Kenya) -vs- Amos Hadar
    Cause 2435 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination 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, "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.