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ELRCPartially AllowedCause (not stated in judgment)· [2019] KEELRC 1860 (KLR)

Jared Ondieki Gechuchu v Boera Main Security Services Ltd [2019] KEELRC 1860 (KLR)

Employment and Labour Relations Court
29 March 2019
RSRadido Stephen
590 words in judgment
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The bottom line

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A Kenyan security guard sacked without a hearing won about Kshs 105,700 after the court ruled his summary dismissal was unfair under the Employment Act.

What this practically means

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Executive summary

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In this undefended Employment and Labour Relations Court cause at Nairobi, the Claimant, a security supervisor employed by the Respondent in 2009, was issued with a notice of summary dismissal on 13 February 2017 on the stated grounds of promoting and acting in the interests of a competitor. Although the Respondent entered appearance through Moindi & Co. Advocates on 6 July 2017, it filed no Response, and the cause proceeded undefended on 19 February 2019, with the Claimant testifying and filing submissions on 15 March 2019. The Court held that a summary dismissal attracts a mandatory obligation on the employer to hear the employee under section 41(2) of the Employment Act, and that the Claimant's uncontroverted evidence that he was never heard stood. Further, under sections 43 and 45 of the Employment Act, the employer bore the burden of proving valid and fair reasons for dismissal, a burden not discharged in the absence of any evidence from the Respondent. The summary dismissal was accordingly declared unfair. The Court awarded compensation equivalent to 8 months' gross wages (Kshs 95,200/-, based on a gross wage of Kshs 11,900/-) reflecting about 8 years of service, plus one month's pay in lieu of notice (Kshs 10,500/-), a total of Kshs 105,700/-, and wages for March 2017 of Kshs 4,846/- was noted as due as of right. Claims for untaken leave, underpayments and severance pay failed for want of proof or inapplicability. The Claimant was awarded costs on half scale. Judgment delivered on 29 March 2019 by Radido Stephen, Judge.

Key legal issues

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01

Fairness of summary dismissal

Holding

The summary dismissal was unfair because the Claimant was not heard and the Respondent failed to prove valid and fair reasons

Reasoning

Summary dismissal under section 41(2) of the Employment Act requires a mandatory hearing of the employee. The Claimant testified he was never given an opportunity to be heard and that evidence was unrebutted since the Respondent filed no Response and led no evidence. The employer also bore the burden under sections 43 and 45 to prove valid and fair reasons, which it failed to discharge.

p. 1
02

Compensation for unfair termination

Holding

The Court awarded the equivalent of 8 months gross wages (Kshs 95,200/-) based on length of service of about 8 years

Reasoning

In exercising discretion on compensation under the Employment Act, the Court considered the length of service, approximately 8 years, and adopted the most recent pay slip (September 2016) showing a gross wage of Kshs 11,900/- as the basis for the 8 months' award.

p. 1
03

Untaken leave claim

Holding

The claim for untaken leave over 8 years was disallowed

Reasoning

The Claimant did not show he applied for leave and was denied, nor that he sought permission to carry forward leave. Section 28 of the Employment Act limits carried-forward leave to at most 18 months, so leave for the entire service period could not be awarded on the evidence presented.

p. 2

Legal principles established

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  • In a case of summary dismissal, the employer is under a mandatory statutory obligation to hear the employee
  • The employer bears the statutory burden of proving that the reasons for dismissal were valid and fair

Court orders

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  1. 1.Declaration that the summary dismissal of the Claimant was unfair
  2. 2.Award of compensation equivalent to 8 months gross wages of Kshs 95,200/-
  3. 3.Award of pay in lieu of notice of Kshs 10,500/-, bringing the total award to Kshs 105,700/-
  4. 4.Claimant to have costs on half scale

Authorities

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Legislation

  • Employment Actsection 41(2)
  • Employment Actsections 43 and 45
  • Employment Actsection 28(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

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, "Jared Ondieki Gechuchu v Boera Main Security Services Ltd [2019] KEELRC 1860 (KLR)", Case Analysis (2019). Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1860/eng@2019-03-29

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