Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 655 (KLR)

Kenya National Private Security Workers Union v G4s Kenya Limited [2021] KEELRC 655 (KLR)

Employment and Labour Relations Court
21 October 2021
HWHellen Wasilwa
2,713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a security guard's dismissal unfair because his employer never showed him, or the court, the CCTV footage proving the alleged misconduct.

What this practically means

#

Executive summary

#
The claimant trade union sued on behalf of its member, a security guard dismissed after allegedly absconding duty and allowing his 15-year-old son to man the KWFT ATM at Olenguruone on 15th April, 2017. The respondent contended the grievant admitted the misconduct in a statement and at a disciplinary hearing held on 31st July, 2017, and was dismissed on 6th August, 2017 for justifiable reasons. The grievant testified that he remained at the premises guarding outside while his son sat inside, apologised, and that the CCTV footage said to show his absence was never shown to him nor produced in court. The respondent's HR officer conceded that no management staff viewed the footage before the disciplinary hearing, and the supervisor who reviewed it neither attended the hearing nor testified. The court held that, absent the CCTV footage, the validity of the reason for dismissal remained unproved and the termination was unfair and unjustified. The claim was partially allowed: the court awarded one month's salary in lieu of notice (Kshs 15,374), July 2017 salary, one year's annual leave, and compensation of six (rather than the twelve sought) months' salary for unfair termination, totalling Kshs 138,366 less statutory deductions. The respondent was ordered to pay the costs of the suit with interest at court rates from the date of judgment. Gratuity for 12 years' service was not included in the award.

Key legal issues

#
01

Validity of the reason for dismissal

Holding

The reason for dismissal was not proved because the CCTV footage relied upon was never shown to the grievant nor produced in evidence

Reasoning

The grievant admitted allowing his 15-year-old son to sit inside the ATM cubicle while he guarded outside. The respondent alleged the footage showed him absent all night, but none of the management viewed it before the disciplinary hearing, the supervisor who saw it did not testify, and the bank allegedly refused to release it. Without the footage, the court could not establish whether the grievant was within the premises, leaving the validity of the reason in limbo.

p. 4
02

Procedural fairness of the termination

Holding

Although a disciplinary hearing was conducted, the absence of the CCTV evidence and of the supervisor who viewed it meant the employee was not accorded a fair process culminating in a justified dismissal

Reasoning

The grievant was suspended, issued a show-cause letter, attended a disciplinary hearing with a colleague representative, and was then dismissed. However the claimant argued, and the court accepted, that the CCTV footage was never shown to the grievant and the only person who viewed it was not available for cross-examination or to testify, undermining both the substantive and procedural fairness of the dismissal.

p. 4

Legal principles established

#
  • Where the evidence (CCTV footage) said to substantiate the reason for dismissal is not availed to the employee or produced in court, the employer fails to prove a valid reason for termination under section 45 of the Employment Act

Court orders

#
  1. 1.Payment of 1 month salary in lieu of notice of Kshs 15,374
  2. 2.Payment of salary for July 2017 of Kshs 15,374
  3. 3.Payment of annual leave for 1 year of Kshs 15,374
  4. 4.Compensation equivalent to 6 months' salary for unfair termination of Kshs 92,244
  5. 5.Total award of Kshs 138,366 less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Employment Actsection 41
  • Employment Actsection 44
  • Employment Actsection 45

Cases cited (5)

  • Walter Ogal Anuro –v- Teacher Service Commission
    [2013] eKLR
  • National Bank of Kenya –v- Anthony Njue John
    [2019] eKLR
  • Janet Nyandiko –v- Kenya Commercial Bank Limited
    [2017] eKLR
  • Leah Nzembi Nzyoka –v- Riley Services Limited
    [2020] eKLR
  • Robert Kenya and another –v- Ocean sports Resort
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act (termination of employment claim following failed conciliation before the labour office)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Private Security Workers Union v G4s Kenya Limited [2021] KEELRC 655 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/655/eng@2021-10-21

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