Wasike Hashim v Brinks Security Services Limited [2021] KEELRC 538 (KLR)
The bottom line
#A Kenyan employer calling an employee a deserter must prove it tried to contact them and issued proper letters, or the dismissal becomes unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's termination was unlawful
The termination was unfair and uncontroverted; the Respondent failed to prove desertion or compliance with the procedural requirements of the Employment Act
The Court found the clearance certificate dated 17 February 2015 inconsistent with the allegedly later warning letter of 18 February 2015, and no evidence of a disciplinary process or attempt to contact the alleged deserter. The Respondent led no evidence of any show cause or termination letter. The Claimant's allegation of termination without prescribed procedure therefore remained uncontroverted.
Whether the Respondent's counter claim for notice pay and unreturned items succeeded
Both heads declined
Having found no desertion, the claim for one month's notice pay under Section 36 was unsustainable. The discharge certificate was unsigned, dated eight days after the Claimant left, and the Respondent led no evidence of demand for the items.
Legal principles established
#- For a termination to be lawful, it must satisfy both substantive and procedural fairness under the Employment Act
- An employer alleging desertion must demonstrate reasonable attempts to contact the employee and issue a show cause and/or termination letter
Court orders
#- 1.Declaration that the summary dismissal was unfair (though not discriminatory)
- 2.Award of one month's salary in lieu of notice of Kshs.10,500
- 3.Award of the equivalent of 3 months' salary (Kshs.31,500) under Section 49(1)(c) of the Employment Act as damages for unfair termination
- 4.Certificate of service to be issued to the Claimant
- 5.Claimant awarded costs of the suit
- 6.Leave and severance pay claim declined
- 7.Counter claim for one month's salary in lieu of notice declined
- 8.Prayer for return of unreturned company property declined and costs of the counter claim declined
- 9.Judgment entered for the Claimant in the sum of Kshs.42,000 with costs and interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 34, 40-47, 49) as pleaded in the memorandum of claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasike Hashim v Brinks Security Services Limited [2021] KEELRC 538 (KLR)", Case Analysis (2021). Cause No 941 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/538/eng@2021-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.