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ELRCPartially AllowedCause No. 945 of 2018· [2020] KEELRC 797 (KLR)

Wilson Otieno Nguti v Kenya Kazi Services Limited (Cause 945 of 2018) (Employment and Labour) [2020] KEELRC 797 (KLR)

Employment and Labour Relations Court of Kenya
26 June 2020
2,825 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 found a security guard's dismissal unfair because his disciplinary hearing was a formality, awarding him nearly Kshs. 395,000.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent security company from 21st June 2008, was summarily dismissed on 10th January 2015 after leaving a US Embassy assignment about 15 minutes early while standing in for a colleague, handing over to another guard. A client who arrived shortly after was kept waiting at the gate. Following a disciplinary hearing on 13th January 2015 before the Deputy Human Resource Manager with two shop stewards present, he was dismissed. He claimed unpaid salaries, gratuity, unexpired contract pay of 18 months, leave pay, notice pay and 12 months' compensation. The court framed two issues: whether the termination was fair and entitlement to remedies. It found the dismissal both substantively and procedurally unfair because the charges in the notice to appear, the hearing form and the dismissal letter differed; the claimant and shop stewards were not allowed to speak; and the dismissal had been pre-endorsed on his file, contravening Section 41 of the Employment Act. The court awarded one month's salary in lieu of notice (Kshs.32,035), leave pay for three years (Kshs.61,345.40), leave travelling allowance (Kshs.3,750), gratuity for six complete years (Kshs.73,615) and seven months' salary as compensation (Kshs.224,245), totalling Kshs.394,990.40. It refused payment for the unexpired contract term and the December 2014 and January 2015 salaries already paid, awarded costs and interest from the date of judgment. Judgment was delivered virtually under COVID-19 directives.

Key legal issues

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01

Whether the summary dismissal was substantively and procedurally fair

Holding

The dismissal was both substantively and procedurally unfair: the charges were inconsistent across the notice, hearing and dismissal letter, the employee and shop stewards were not heard, and the dismissal was predetermined.

Reasoning

The court compared the charges in the notice to report, the hearing form and the summary dismissal letter and found them different, so the claimant could not know what he was defending against. Evidence showed the file bore a prior endorsement to dismiss, meaning the hearing was a formality. Neither the claimant nor the stewards were allowed to speak, breaching Section 41 of the Employment Act.

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02

Whether the claimant was entitled to compensation under Section 49(1)(c)

Holding

Yes - awarded 7 months' gross salary (Kshs.224,245) considering length of service, clean record, mishandled hearing, and the fact the ground of termination (leaving before reliever arrived) was not established.

Reasoning

The court weighed Section 49 factors: six years' service, awards and no written warning, the flawed disciplinary process, and that the claimant only left about 15 minutes early to take uniforms to his regular station, handing over to Barasa, so the allegation of leaving before a reliever arrived was untrue.

p. 4
03

Entitlement to gratuity, leave and notice pay

Holding

Entitled to one month's notice pay (Kshs.32,035), leave pay for 3 years (Kshs.61,345.40), leave travelling allowance (Kshs.3,750), and gratuity for 6 complete years (Kshs.73,615) under the Regulation of Wages (Protective Security Services) Order and the contract.

Reasoning

The respondent adduced no evidence that the claimant took leave or was paid in lieu for three years. Gratuity accrued after five years' service under the applicable Wages Order and paragraph 10 of the contract; the certificate of service confirmed six complete years from 21st June 2008 to 10th January 2015.

p. 4

Legal principles established

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  • Section 41 of the Employment Act requires that an employee be represented by a shop floor official of his choice and that both the employee and representative be given an opportunity to present their explanation before dismissal.
  • Mere physical presence of shop floor officials at a disciplinary hearing does not amount to representation where the employee had no opportunity to confer with them.
  • Dismissal is unfair where the charges in the notice to appear, at the hearing and in the dismissal letter differ, and where the outcome was predetermined.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs.32,035
  2. 2.Pay in lieu of annual leave for 3 years of Kshs.61,345.40
  3. 3.Leave travelling allowance of Kshs.3,750
  4. 4.Gratuity of Kshs.73,615
  5. 5.7 months' salary as compensation for unfair dismissal of Kshs.224,245 (total award Kshs.394,990.40)
  6. 6.Respondent to pay claimant's costs of the suit
  7. 7.Interest to accrue from date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 49(1)(c)
  • Regulation of Wages (Protective Security Services) Ordergratuity after minimum 5 years' service
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)

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, "Wilson Otieno Nguti v Kenya Kazi Services Limited (Cause 945 of 2018)  (Employment and Labour) [2020] KEELRC 797 (KLR)", Case Analysis (2020). Cause No. 945 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/797/eng@2020-06-26

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