Penina Jelimo Bett v Intercity Secure Homes Ltd [2019] KEELRC 1048 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal was justified
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
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.
Whether the remedies sought are due
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
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.
Whether certificate of service should issue
The certificate of service is due under section 51 of the Employment Act and must be issued regardless of pending proceedings
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.
Whether costs should be awarded
Costs were awarded to the claimant given there was demand and terminal dues had remained unpaid since termination
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.
Legal principles established
#- 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
#- 1.A declaration that employment terminated unfairly
- 2.Compensation awarded at one month salary ksh.10,315.15
- 3.Notice pay ksh.10,315.15
- 4.Salary due for December 2014 Kshs.10,315.15
- 5.10 days unpaid for January 2015 Ksh.3,435.00
- 6.Underpayment ksh.53,475.00
- 7.Overtime Ksh.163,335.60
- 8.Off days/rest days ksh.92,676.30
- 9.Leave pay ksh.8,935.60
- 10.Uniform refund ksh.3,000.00
- 11.Dues above to be subject to taxation
- 12.Certificate of service to be issued
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.