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ELRCDismissedEmployment and Labour Relations Cause dated 13th December 2016· [2021] KEELRC 88 (KLR)

Kenya National Private Security Workers Union v Mongoose Property Care Limited [2021] KEELRC 88 (KLR)

Employment and Labour Relations Court
15 December 2021
NMNzioki wa Makau
899 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 dismissed a security guard's unfair dismissal claim because his union produced no documents proving the dismissal or underpayment claims.

What this practically means

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Executive summary

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The Claimant Union sued on behalf of its Grievant, Mr. Patrick Shiemi, a Security Guard employed by the Respondent from 5th October 2013, alleging unfair termination on 27th January 2016 on account of joining a union, denial of a hearing, and non-payment of terminal dues. It sought notice pay, underpayment of wages against the Government wage order, house allowance, standard overtime, leave for 2015, 12 months' compensation for unfair termination, a certificate of service, costs and interest. The Respondent denied the claims, asserting the Grievant deserted employment and that the allegations were fabrications. The Grievant testified before Radido J. that he was ordered to return his uniform at Information House, told to go home, and learned the following morning that his services had been terminated without notice or a disciplinary hearing. The Union reported a trade dispute, a Conciliator was appointed by the Ministry of Labour, the Respondent failed to attend conciliation meetings, and a certificate under Section 69(b) of the Labour Relations Act issued, enabling the suit. At the defence hearing the Respondent did not appear and its case was closed. The court found that the Grievant, despite asserting dismissal for union membership, did not attach Form S or membership receipts, did not attach the relevant Wages Orders to substantiate underpayment claims, and produced no evidence of overtime. There was also no letter from the Union protesting the termination, only a complaint made months later. The court held the claim was not proved to the required standard and dismissed it with no order as to costs, on 15th December 2021.

Key legal issues

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01

Whether the Grievant proved unfair termination on account of union membership

Holding

The claim of unfair termination for joining a union was not proved; no Form S or membership receipts were attached and no letter protesting the termination was produced

Reasoning

The Grievant asserted he was dismissed for joining the union but produced no Form S evidencing union membership nor receipts for membership dues. No letter from the Claimant Union protesting the termination at the time was exhibited, only a complaint made months later. The Respondent maintained the Grievant deserted employment and did not appear at the defence hearing. The court found the claim unproved to the required standard and dismissed it.

p. 2
02

Whether the claimed underpayments, house allowance and overtime were proved

Holding

The claims failed for want of documentary evidence of the applicable Wages Orders and any proof of overtime

Reasoning

Although the claim pleaded underpayment against the stipulated Government wage, house allowance for two periods and standard overtime for 20 and 8 months, the Grievant did not attach the relevant Wages Orders nor any evidence of overtime worked. In the absence of such proof the monetary claims could not be sustained and fell with the dismissal of the claim.

p. 2

Legal principles established

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  • A party alleging unfair termination bears the burden of proving it to the required standard, including production of supporting documents such as proof of union membership and applicable Wages Orders.

Court orders

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  1. 1.The claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Labour Relations ActSection 69(b)
Jurisdiction invoked
Referral to the Employment and Labour Relations Court following conciliation and issuance of a certificate under Section 69(b) of the Labour Relations Act

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, "Kenya National Private Security Workers Union v Mongoose Property Care Limited [2021] KEELRC 88 (KLR)", Case Analysis (2021). Employment and Labour Relations Cause dated 13th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/88/eng@2021-12-15

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