Charles Etyang Engalau v J.R.S Group Security Limited [2018] KEELRC 2261 (KLR)
The bottom line
#A Kenyan court ruled a security guard who stopped reporting to work deserted his job, but his employer still had to pay overtime and NSSF deductions it owed him.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed or deserted work
The Claimant deserted work when given the option of working during the day or night and was not dismissed; the Respondent rebutted the claimant's evidence.
The Respondent received client complaints that the Claimant slept on duty at night, and had reliable information that he rode a boda boda during the day. The Claimant was offered a choice of day or night shifts and thereafter deserted. He failed to discharge the statutory burden under section 47(5) of the Employment Act of proving unfair termination.
Overtime claim
Awarded Kshs.14,466.65 as unpaid overtime with interest.
The Claimant proved he worked twelve hours daily and was not compensated for the extra hours. The Respondent led no contrary evidence on hours of work, so the court accepted the Claimant's testimony on this head.
NSSF refund
Awarded Kshs.4,400 as deducted but unremitted NSSF contributions.
The Claimant demonstrated that contributions of Kshs.4,400 were deducted but not remitted on his behalf to the NSSF Fund by the Respondent, and the court awarded that sum.
Legal principles established
#- In a complaint of unfair termination, the burden of proving that unfair termination or wrongful dismissal occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
- A claimant must prove his claim on a balance of probabilities
Court orders
#- 1.Kshs.14,466.65 being unpaid overtime to be paid with interest at court rates from date of filing suit
- 2.Respondent to provide a Certificate of Service to the Claimant within 30 days of the judgment
- 3.The rest of the prayers are dismissed
- 4.Respondent to pay half the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and terminal benefits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Etyang Engalau v J.R.S Group Security Limited [2018] KEELRC 2261 (KLR)", Case Analysis (2018). Cause No. 102 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2261/eng@2018-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.