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ELRCPartially AllowedCause No 962 of 2014· [2019] KEELRC 1402 (KLR)

Thomas Muthoka Wambua v Collindale Security Limited [2019] KEELRC 1402 (KLR)

Employment and Labour Relations Court
14 June 2019
RSRadido Stephen
1,066 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 firing a security guard arrested at work, without a hearing, was unfair and awarded him over Kshs 219,000.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from 2003 until 14 August 2014, sued for unfair termination and breach of contract. He was arrested after a robbery at premises he was guarding on 23 July 2013, charged with robbery with violence and remanded until 20 August 2013. On release he was handed a letter terminating his employment on account of desertion. The Respondent, which knew of the arrest as it had sent a reliever guard, did not rebut that evidence and failed to attend court with a witness. The Court held that although under section 44(4)(f) of the Employment Act arrest and detention would have justified summary dismissal, the Respondent was still bound by section 41 to afford the Claimant a hearing; mere notification of termination for desertion was insufficient. Following comparative and local authority, the Court held desertion had not occurred since the absence was not intentional, and found the termination procedurally unfair. It awarded one month's pay in lieu of notice (Kshs 10,911/-), ten months' gross wages as compensation (Kshs 125,470/-) given about ten years of service, underpayments of Kshs 78,378/40 (drawing an adverse inference from the Respondent's withholding of contracts for the contested period), and a uniform refund of Kshs 4,500/-, totalling Kshs 219,259/40. The Respondent was ordered to issue a certificate of service within 15 days. Costs were denied to the Claimant for late filing of submissions.

Key legal issues

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01

Procedural fairness in termination of an employee in lawful custody

Holding

Termination was procedurally unfair because the Respondent did not give the Claimant notice under section 35(1)(c) or a hearing under section 41, despite his arrest and detention

Reasoning

Section 35(1)(c) requires one month's written notice for monthly-paid employees and section 41 requires informing the employee of reasons and affording a hearing. Although section 44(4)(f) makes arrest and detention a valid reason for summary dismissal, the employer still had to ask the employee to show cause. Merely informing the Claimant of termination on account of desertion was insufficient; the employer knew of the arrest as it had sent a reliever guard.

p. 1
02

Whether desertion occurred

Holding

Desertion had not occurred because the Claimant's absence was not intentional

Reasoning

The Court adopted comparative authority holding that desertion requires intention. The Claimant was unable to attend work because he was in custody following arrest after a robbery at the premises he guarded, not because he intended to abandon employment. The Respondent knew of the arrest since it sent another guard to take over the assignment and did not rebut that evidence.

p. 2
03

Underpayment below prescribed minimum wage

Holding

The Respondent breached the contract by paying below the prescribed minimum wages; underpayment claim of Kshs 78,378/40 allowed

Reasoning

The Claimant produced Legal Notices prescribing minimum wages for night guards in Nairobi for the relevant periods. The Respondent denied underpayment but filed employment records for other periods while withholding contracts for the contested period of 1 May 2011 to 14 August 2013. The Court drew the adverse inference that the withheld records were adverse to the Respondent and concluded there was breach.

p. 2
04

Compensation for unfair termination

Holding

Ten months' gross wages awarded in consideration of about 10 years of service

Reasoning

The Claimant served the Respondent from 2003 to 14 August 2014, approximately 10 years. Taking length of service into account, the Court considered the equivalent of 10 months gross wages (Kshs 12,547/65 per Legal Notice No. 197 of 2013) fair and appropriate compensation for the unfair termination.

p. 2

Legal principles established

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  • The mere fact that an employee is in lawful custody is no excuse for an employer's failure to comply with the procedural fairness requirements of section 41 of the Employment Act.
  • Desertion requires intentional absence; an employee absent because of arrest and detention has not deserted employment.
  • Where an employer withholds records in its possession relating to a period in contention, an adverse inference may be drawn against it.

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Declaration that the Respondent was in breach of contract
  3. 3.Award of pay in lieu of notice of Kshs 10,911/-
  4. 4.Award of compensation equivalent to 10 months gross wages of Kshs 125,470/-
  5. 5.Award of underpayments of Kshs 78,378/40
  6. 6.Award of uniform refund of Kshs 4,500/- (total award Kshs 219,259/40)
  7. 7.Respondent to issue Certificate of Service within 15 days
  8. 8.Claimant denied costs for failing to file/serve submissions within agreed timelines

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 41(1) & (2)
  • Employment Act, 2007section 44(4)(f)
  • Legal Notice No. 197 of 2013prescribed minimum wages (gross Kshs 12,547/65)
  • Legal Notices on prescribed minimum wages for night guards within Nairobi1 May 2011 - 30 April 2012 (Kshs 8,463); 1 May 2012 - 30 April 2013 (Kshs 9,266); from 1 May 2013 (Kshs 10,563)

Cases cited (3)

  • Lawrence Onyango Oduori v Kenya Commercial Bank Ltd
    (2014) eKLR
  • Skweyiya v Lingelihle Town Council
    (1990) II ILJ 136
  • Laminate Profiles CC v Aubrey Mompei & Ors
    (2007) ZALC 12
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and breach of employment contract)

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, "Thomas Muthoka Wambua v Collindale Security Limited [2019] KEELRC 1402 (KLR)", Case Analysis (2019). Cause No 962 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1402/eng@2019-06-14

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