Machoka Jared Omache v Bob Morgan Services Limited [2020] KEELRC 665 (KLR)
The bottom line
#A Kenyan court ruled a guard's dismissal unfair because the employer proved neither negligence nor gave him a proper disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's dismissal for gross misconduct (negligence) was lawful and fair
The dismissal was both substantively and procedurally unfair: no negligence was established and no disciplinary hearing was proved to have been held
The dismissal letter accused the Claimant of negligent performance of duty. The Court found that the Claimant and colleagues were attacked by armed intruders and that the panel itself had noted the assignment was exposed due to inadequate lighting and fencing, which was not considered. The Respondent's witness admitted he was not at the disciplinary meeting, no invitation was produced, and the Claimant's name and signature did not appear in the record of proceedings, leaving his testimony that he was never heard unchallenged.
Whether the Claimant was entitled to the remedies sought
Claimant awarded 8 months' salary in compensation, one month's notice pay, admitted dues (May salary, off days, uniform refund), certificate of service and costs; the 2013 leave claim was time-barred
In exercising the discretion on compensation under the Employment Act, the Court considered the Claimant's length of service, employment record and the Respondent's failure to follow the law. Claims for May salary, accumulated off days and uniform refund were admitted. The leave claim for 2013 fell outside the limitation period under Section 90.
Legal principles established
#- An employer who fails to establish negligence on the part of an employee has no valid reason for dismissal under Section 43 of the Employment Act
- Whether an employee acted reasonably (and hence negligently) must be determined at an internal disciplinary hearing as required under Section 41 of the Employment Act
- In assessing the fairness of dismissal, the Court applies the reasonable responses test, judging the employer's decision against the standard of a reasonable employer
Court orders
#- 1.8 months' salary in compensation (Kshs. 135,256)
- 2.1 month's salary in lieu of notice (Kshs. 16,907)
- 3.Unpaid salary for May 2017 (Kshs. 16,907)
- 4.6 accumulated off days in May 2017 (Kshs. 3,381)
- 5.Uniform refund (Kshs. 3,500)
- 6.Total award of Kshs. 175,951 with interest at court rates from the date of judgment until payment in full
- 7.Certificate of service to be issued to the Claimant
- 8.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45, 49 and 90 referred to)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Machoka Jared Omache v Bob Morgan Services Limited [2020] KEELRC 665 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/665/eng@2020-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.