Valentine Odongo v Boera Main Security Services Limited [2019] KEELRC 1279 (KLR)
The bottom line
#A Kenyan court awarded a security guard Kshs. 175,706 after his employer failed to prove he quit his job or follow fair dismissal procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded duty or was unfairly terminated
The termination was unfair and unjustified; the defence of absconding was false.
The Respondent alleged the Claimant deserted duty on 26/10/2014, yet the Claimant had been ordered on 28/10/2014 not to report and to await deployment. Two weeks after the alleged termination the Respondent had made no attempt to reach the Claimant despite having his contact details, and there was no evidence of any attempt to summon him to a disciplinary hearing. Without that evidence, the absconding claim failed.
Whether the termination complied with Sections 41 and 45 of the Employment Act, 2007
The Respondent failed on both valid reason and fair procedure, rendering the dismissal unfair.
Section 45(2) requires the employer to prove a valid and fair reason related to conduct, capacity, compatibility or operational requirements, and that termination followed fair procedure. The Claimant was never subjected to any disciplinary hearing as required under Section 41, and the Respondent did not establish a valid reason. The court therefore found the dismissal unfair and unjustified.
Quantum of remedies for the unfair termination and admitted dues
The court awarded the admitted underpayment and house allowance, notice pay, unpaid October 2014 salary and eight months' compensation, totalling Kshs. 175,706.
The Respondent admitted liability on underpayment (Kshs. 46,944) and house allowance (Kshs. 19,642). For the unfair termination, the court exercised its discretion under the Employment Act to award eight months' salary as compensation, together with one month's notice pay and the unpaid October 2014 salary.
Legal principles established
#- An employer must prove both a valid reason and fair procedure before terminating employment; failure to subject an employee to a disciplinary hearing renders termination unfair under Sections 41 and 45 of the Employment Act.
- Where an employer alleges that an employee absconded duty, it must prove that it attempted to reach the employee or to summon him to a disciplinary hearing; in the absence of such evidence, the allegation of absconding fails.
Court orders
#- 1.Judgment entered for the Claimant for Kshs. 46,944/= being underpayment of Kshs. 3,912 x 12 months
- 2.Unpaid house allowance at Kshs. 19,642/= (15/100 x 10,912 x 12)
- 3.One month's salary in lieu of notice of Kshs. 10,912/=
- 4.Unpaid salary for October 2014 of Kshs. 10,912/=
- 5.Eight months' salary as compensation for unfair termination of Kshs. 87,296/= (8 x 10,912)
- 6.Total award of Kshs. 175,706/= to the Claimant
- 7.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unlawful termination and terminal dues claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Valentine Odongo v Boera Main Security Services Limited [2019] KEELRC 1279 (KLR)", Case Analysis (2019). Cause No. 207 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1279/eng@2019-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.