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ELRCPartially AllowedEmployment and Labour Relations Court Cause (Memorandum of Claim dated 6th October 2016)· [2019] KEELRC 902 (KLR)

Maiko Oscar Michael v G4S Security Services Kenya [2019] KEELRC 902 (KLR)

Employment and Labour Relations Court
19 September 2019
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even when a security guard's dismissal had valid grounds, G4S still had to pay because it skipped mandatory fair-hearing steps.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent at a monthly salary of Kshs. 16,500 from 4th June 2010, was summarily dismissed on 23rd October 2013 following the theft of LPG gas cylinders belonging to the Respondent's client, BOC Gases, at premises he was guarding on the night of 9th and 10th October 2013. He and a colleague were criminally charged with stealing and neglect to prevent a felony but were acquitted on both counts. The court framed two issues: whether the dismissal was lawful and fair, and whether the remedies sought were payable. Applying the 'reasonable responses test' and the balance-of-probability standard for internal disciplinary matters, the court held the Respondent had a valid reason for dismissal: goods were lost under the Claimant's watch with no break-in or aggression, and he failed to demonstrate efforts made to prevent the theft; his criminal acquittal did not preclude culpability on internal charges. However, the court found the mandatory procedural fairness requirements of Section 41 of the Employment Act were not satisfied, as there was no record that the charges were formally placed before the Claimant before dismissal, rendering the dismissal procedurally unfair. The court awarded three months' salary in compensation, one month's salary in lieu of notice, leave pay for three years and pro rata leave for four months, totalling Kshs. 104,500, with interest at court rates from the date of judgment. The claim for overtime was dismissed as unproved. The Claimant was also granted a certificate of service and costs of the case.

Key legal issues

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01

Whether the Respondent had a valid reason to summarily dismiss the Claimant under Section 43 of the Employment Act

Holding

The Respondent had a valid reason: goods were lost under the Claimant's watch without break-in or aggression, and he did not demonstrate efforts to prevent the theft

Reasoning

The Court applied the 'reasonable responses test' from Reuben Ikatwa, asking whether the employer's action was reasonable and justifiable rather than substituting its own view. It noted the standard of proof in disciplinary matters is a balance of probability, and that the Claimant's criminal acquittal did not bar culpability on internal charges. Goods belonging to the client were lost on the Claimant's watch with no break-in or direct aggression, and the Claimant did not show what efforts he made to prevent the theft. The dismissal was therefore substantively justified under Section 44(4)(c) and Section 43.

p. 3
02

Whether the dismissal complied with the procedural fairness requirements of Section 41 of the Employment Act

Holding

The dismissal was procedurally unfair because there was no record that the charges were formally placed before the Claimant before dismissal

Reasoning

The Respondent's evidence was equivocal: the dismissal letter referenced a disciplinary hearing on 22nd October 2013 while the witness statement of Dorcas Masika stated a hearing on 23rd October 2013. Though the date discrepancy was not overly material, there was no record demonstrating that the charges were formally placed before the Claimant prior to dismissal. The mandatory procedural fairness requirements of Section 41 were therefore not satisfied, entitling the Claimant to compensation despite the valid substantive reason.

p. 3
03

Whether the Claimant was entitled to leave pay

Holding

The claim for leave pay was allowed because the Respondent produced no records to support its assertion that the Claimant did not work continuously

Reasoning

The Respondent's Operations Manager testified that the Claimant was not entitled to annual leave because he did not work continuously. However, she produced no record to support this assertion regarding the nature and status of the Claimant's employment. In the absence of such records, the Court accepted the Claimant's evidence that he never went on leave and allowed the claim for leave pay for three years, plus pro rata leave for the final four months of service.

p. 3
04

Whether the Claimant proved his claim for unpaid overtime

Holding

The overtime claim failed for want of proof

Reasoning

The Claimant alleged he worked extra hours without compensation, averaging two hours per day over three years, and claimed Kshs. 410,625. The Respondent denied that the Claimant worked overtime without compensation. The Court found the claim was not proved and dismissed it. No further analysis or evidence assessment was set out, indicating the Claimant bore the burden of proof and did not discharge it on this head.

p. 3

Legal principles established

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  • The Court applies the 'reasonable responses test': it does not replace the employer's decision but asks whether the employer's action was reasonable and justifiable in the circumstances
  • The standard of proof in internal disciplinary matters is on a balance of probability, not beyond reasonable doubt
  • Acquittal on criminal charges does not preclude a finding of culpability on internal administrative charges arising from the same facts
  • An employer must satisfy the mandatory procedural fairness requirements of Section 41 of the Employment Act, including formally placing the charges before the employee before dismissal

Court orders

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  1. 1.3 months' salary in compensation of Kshs. 49,500
  2. 2.1 month's salary in lieu of notice of Kshs. 16,500
  3. 3.Leave pay for 3 years of Kshs. 34,650 (16,500/30x21x3)
  4. 4.Pro rata leave for 4 months of Kshs. 3,850 (16,500/30x1.75x4)
  5. 5.Total judgment of Kshs. 104,500 with interest at court rates from the date of judgment until payment in full
  6. 6.Claimant entitled to a certificate of service
  7. 7.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 44(4)(c)
  • Employment Act, 2007Section 43
  • Employment ActSection 41
  • Penal CodeSection 268(2)(1) as read with Section 275
  • Penal CodeSection 392

Cases cited (2)

  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    [2017] eKLR
  • Attorney General & another v Maina Githinji & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "Maiko Oscar Michael v G4S Security Services Kenya [2019] KEELRC 902 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Cause (Memorandum of Claim dated 6th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/902/eng@2019-09-19

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