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ELRCPartially AllowedCause No. 595 of 2014· [2019] KEELRC 1081 (KLR)

James Mchovoti Nalisi v Eclipse International Limited [2019] KEELRC 1081 (KLR)

Employment and Labour Relations Court of Kenya
7 March 2019
2,262 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 awarded a bouncer unpaid wages and leave dues but allowed his summary dismissal, warning employers to keep records and pay the minimum wage.

What this practically means

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Executive summary

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The claimant sued his former employer, a club operator, seeking notice pay, underpayments, overtime, public holiday pay, annual leave pay, salary for 24 days worked in January 2014, and compensation for unfair termination following his summary dismissal on 24th January 2014 after an incident in which a customer allegedly lost money. The defence was that the claimant was a bouncer, not a security guard; that there was no minimum wage for bouncers; that he had a history of disciplinary issues and warnings; and that he colluded in the theft of a customer's money, justifying summary dismissal. The court held that the summary dismissal was justified: the claimant was called over the incident, sent home to allow investigations, and dismissed after failing to give a satisfactory defence; his negligence in allowing secret dealings instead of reporting them made the dismissal his own making. Notice pay and compensation were therefore refused, and the overtime claim failed because the defence that the business operated from 7pm to 3am, an 8-hour shift, was unchallenged. However, the court held that although 'bouncer' is not defined under the Wage Orders, this was no excuse to underpay the claimant, who was awarded underpayments of Ksh.30,914.00 computed against the applicable minimum wages. Public holiday double pay of Ksh.18,206.40 for 24 holidays was awarded as the defence of double payment was unsupported by work records, and annual leave pay of Ksh.19,567.60 was awarded, the court holding that the employer bears the statutory duty to ensure leave is taken or paid. Payment for 24 days worked in January 2014 of Ksh.6,332.00 was also awarded, all subject to section 49(2) of the Employment Act and less a loan of Ksh.9,120.00 and a salary advance of Ksh.920.00. There were no orders on costs.

Key legal issues

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01

Justification of summary dismissal

Holding

The summary dismissal was justified; the claimant failed to undertake his duties diligently and his own conduct led to the dismissal

Reasoning

The court accepted that there was an incident on the night before the dismissal when the claimant allowed a customer into a room and money was reported lost. The claimant was called over the matter, sent away to allow for investigations, and was informed of the theft before dismissal. The call, being sent home, the investigations he was aware of, and the dismissal after he failed to give a satisfactory defence were allowed in cases of gross misconduct. The claimant's negligence in allowing secret dealings rather than reporting them to the employer made the summary dismissal his own making.

p. 2
02

Whether the claimant was a security guard or a bouncer

Holding

The claimant was a bouncer, not a security guard, since security services had been outsourced to Simba security and the claimant performed distinct internal duties

Reasoning

The claimant himself testified that there were uniformed guards from Simba while he wore a t-shirt written security. The respondent submitted the contract with Simba security. The claimant described his own duties as those of a bouncer, manning the inside of the club while other security guards manned outside. Being set apart from the sourced security guards, the claimant could not claim to be a security guard.

p. 3
03

Underpayment despite unregulated job title

Holding

Even though 'bouncer' is not defined in the Wage Orders, the claimant was entitled to the applicable minimum wage for his general duties; he was underpaid throughout

Reasoning

The court computed underpayments for each year of service: in 2011 against the minimum wage of Ksh.6,221.00 under the Regulation of Wages (General) (Amendment) Order, 2010 where he was paid Ksh.5,000.00; for 2012 against the minimum wage of Ksh.6,999.00 under the 2011 Order where he was paid Ksh.6,000.00; and for the six full months of the final year against the minimum wage of Ksh.7,915.90 where he was paid Ksh.7,000.00. Total underpayments came to Ksh.30,914.40.

p. 3
04

Public holiday pay

Holding

The defence that the claimant was paid double during public holidays was not supported by any work records, so public holiday double pay was awarded for 24 holidays

Reasoning

The salary schedule filed with the defence did not tabulate any double pay for work during public holidays. The court therefore awarded double pay for 8 days in 2011, 11 days in 2012 and 6 days in 2013, totalling 24 public holidays, computed on the last due daily wage of Ksh.379.30, with double payment at Ksh.758.60 per holiday, all being Ksh.18,206.40, in accordance with section 49(1)(c) of the Employment Act, 2007.

p. 3
05

Annual leave

Holding

The employer bears the duty to ensure leave is taken or paid in lieu; the claimant was awarded payment in lieu of 52 days of untaken leave

Reasoning

Under section 28 of the Employment Act, 2007, the duty to ensure an employee takes annual leave or is paid in lieu rests on the employer and should not be left to the employee alone. As the claimant was not allocated leave time and was not paid, payment in lieu was due at 21 days per year, prorated for 6 full months, totalling 52 days, at Ksh.19,567.60.

p. 3

Legal principles established

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  • Where the employer fails to issue a written contract and fails to submit work records, the word of the employee must be believed
  • The absence of a defined role under the Wage Orders is no excuse to underpay an employee; the minimum wage applicable to general duties applies
  • It is the employer's duty under section 28 of the Employment Act to ensure an employee takes annual leave or is paid in lieu
  • Summary dismissal is permissible for gross misconduct but the employee must be given a hearing under section 41(2) of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the sum of underpayments Ksh.30,914.00
  2. 2.Public holidays pay Ksh.18,206.40
  3. 3.Annual leave pay Ksh.19,567.60
  4. 4.Payment for 24 days worked in January 2014 at Ksh.6,332.00
  5. 5.The dues (a) to (d) to be subject to the provisions of section 49(2) of the Employment Act, 2007
  6. 6.Total dues payable less the loan and salary advances of Ksh.9,120.00 and Ksh.920.00 respectively
  7. 7.No orders on costs

Authorities

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Legislation

  • Employment Act, 2007section 27
  • Employment Act, 2007section 28
  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 49(2)
  • Employment Act, 2007section 10
  • Regulation of Wages (General) (Amendment) Order, 2010
  • Regulation of Wages (General) (Amendment) Order, 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes

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, "James Mchovoti Nalisi v Eclipse International Limited [2019] KEELRC 1081 (KLR)", Case Analysis (2019). Cause No. 595 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1081/eng@2019-03-07

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