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ELRCPartially AllowedCause No. 166 of 2016· [2019] KEELRC 1048 (KLR)

Penina Jelimo Bett v Intercity Secure Homes Ltd [2019] KEELRC 1048 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
7 March 2019
1,991 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 that a security guard was unfairly dismissed because her employer followed the wrong legal process and had no records to back misconduct claims.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a day/night guard at Egerton University campus from 1st July 2013 at a monthly wage of ksh.7,500, alleged her employment was terminated on 10th January 2015 when her supervisor called and directed her not to report back, without notice, reasons or terminal dues. She claimed unpaid December 2014 salary, ten days of January 2015 wages, compensation, underpayments against the statutory minimum wage, off/rest days, public holiday pay, notice pay, annual leave, overtime, uniform refund and a certificate of service. The respondent, absent at the hearing and calling no evidence, pleaded gross misconduct - negligence leading to theft of Egerton University property - and purported to have summarily dismissed her under section 17(a) and (c) of the Employment Act, 2007. The court held section 17 concerns payment of wages, not summary dismissal, calling its invocation a misnomer. The serious misconduct allegations were unsupported by any work records and were left bare. The court found the respondent failed to comply with sections 41, 43 and 45 of the Employment Act, rendering the termination procedurally and substantively unfair. It awarded compensation of one month's salary, notice pay, unpaid wages, underpayments assessed on the night-guard minimum wage, overtime for 2,056 hours, off days, pro-rated leave pay, uniform refund and a certificate of service, but declined the public holiday claim as unparticularised. Costs were awarded to the claimant.

Key legal issues

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01

Whether the summary dismissal was justified

Holding

The dismissal was procedurally and substantively unfair; the respondent invoked the wrong statutory provisions (section 17) and produced no work records to justify gross misconduct

Reasoning

The respondent relied on section 17(a) and (c) of the Employment Act, which relates to payment of wages and not summary dismissal - a gross error. Allegations of negligence, theft and gross misconduct were made in the defence but unsupported by any work records, leaving them bare. Without evidence, only the claimant's account remained: she was called by her supervisor on 10th January 2015 and directed not to report back. Sections 41, 43 and 45 were not followed, so termination was unfair.

p. 3
02

Whether the remedies sought are due

Holding

Most monetary remedies were due and awarded, assessed by the court on the minimum wage for a night guard, since the respondent filed no work records to controvert them

Reasoning

The failure to file work records on hours of work, public holiday pay, unpaid wages for December 2014 and January 2015, and annual leave meant those claims were assessed on the claimant's evidence. Underpayments were computed against the Regulation of Wages (General) (Amendment) Orders minimum wage for a night guard (ksh.10,315.95), unchallenged by the respondent. The public holiday claim was general and unparticularised. The defence that the claimant agreed to work for a private institution did not excuse overtime payment.

p. 3
03

Whether certificate of service should issue

Holding

The certificate of service is due under section 51 of the Employment Act and must be issued regardless of pending proceedings

Reasoning

Section 51 of the Employment Act requires a certificate of service to issue together with the termination notice. The court held it should not wait for judicial proceedings to end, and that failure to issue one, if it causes loss of employment, can be redressed with an appropriate award upon evidence. Here the certificate was simply due and ordered issued.

p. 3
04

Whether costs should be awarded

Holding

Costs were awarded to the claimant given there was demand and terminal dues had remained unpaid since termination

Reasoning

The court found costs due on a good basis because the claimant had made demand and terminal dues had not been paid since the employment terminated on 10th January 2015. Costs followed the event, the claimant having substantially succeeded.

p. 4

Legal principles established

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  • An employer must adhere to the mandatory procedural and substantive fairness requirements of sections 41, 43 and 45 of the Employment Act before terminating employment
  • Summary dismissal under section 44 read with section 41(2) of the Employment Act still requires the employee to be given a hearing
  • Serious allegations of misconduct left without supporting work records have no evidential value and cannot controvert the employee's evidence
  • A certificate of service must be issued at termination and should not await the conclusion of judicial proceedings
  • The employer bears the duty to provide work tools such as uniforms; deductions for uniforms are refundable

Court orders

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  1. 1.A declaration that employment terminated unfairly
  2. 2.Compensation awarded at one month salary ksh.10,315.15
  3. 3.Notice pay ksh.10,315.15
  4. 4.Salary due for December 2014 Kshs.10,315.15
  5. 5.10 days unpaid for January 2015 Ksh.3,435.00
  6. 6.Underpayment ksh.53,475.00
  7. 7.Overtime Ksh.163,335.60
  8. 8.Off days/rest days ksh.92,676.30
  9. 9.Leave pay ksh.8,935.60
  10. 10.Uniform refund ksh.3,000.00
  11. 11.Dues above to be subject to taxation
  12. 12.Certificate of service to be issued
  13. 13.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and employment benefits claims)

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, "Penina Jelimo Bett v Intercity Secure Homes Ltd [2019] KEELRC 1048 (KLR)", Case Analysis (2019). Cause No. 166 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1048/eng@2019-03-07

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