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ELRCPartially AllowedCause No. 1382 of 2014 (consolidated with Causes No. 1381 and 1383 of 2014)· [2021] KEELRC 1456 (KLR)

Maurice Otieno Ngicho & 2 others v Brinks Security Services Limited [2021] KEELRC 1456 (KLR)

Employment and Labour Relations Court of Kenya
13 April 2021
1,955 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 upheld the summary dismissal of three workers who refused overtime, but still awarded them accrued leave pay.

What this practically means

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Executive summary

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Three claimants, tailors employed by Brinks Security Services Limited on fixed-term contracts at Ksh.16,000 per month, sued for notice pay, leave pay and twelve months' compensation, alleging unfair and unlawful termination after they were issued with termination notices on 1 July 2014. The respondent filed a defence and counter-claim, asserting the claimants defied a lawful direction to work overtime on 30 June 2014, refused to reply to a notice to show cause, and failed to serve a seven-day notice of termination issued on 1 July 2014, culminating in summary dismissal on 8 July 2014. The counter-claim sought notice pay of Ksh.16,000 from each claimant. The court framed three issues: refusal to attend overtime, failure to show cause, and failure to serve the notice period. Relying on sections 44 and 41(2) of the Employment Act, 2007, the court held there was lawful cause and valid reasons for summary dismissal and that due process was followed, defeating the claims for notice pay and compensation. However, under section 28, annual leave accrued regardless of the reason for termination: Maurice Otieno Ngicho and Hyrine Mikae Bonareri received Ksh.10,267 each for eleven months' service, and Josphat Sakwa Okutoto Ksh.16,000 for a full year. On the counter-claim, each claimant was ordered to pay the respondent Ksh.3,730 in notice pay, with costs of the counter-claim to the respondent, the leave awards to be set off against the counter-claim award. Judgment delivered at Nairobi on 13 April 2021 by M. Mbaru, J.

Key legal issues

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01

Whether the summary dismissal of the claimants was lawful and fair

Holding

The dismissal was justified: the claimants refused overtime as directed, failed to respond to the show cause notice, and abandoned work during the notice period

Reasoning

The court found the claimants defied a lawful instruction to work overtime on 30 June 2014, declined to reply to a notice to show cause, and after being issued with seven days' notice of termination on 1 July 2014 failed to report to work or serve the notice period. Sections 44(3) and 44(a), (c) and (e) of the Employment Act permit summary dismissal for such conduct, subject to notice to defend themselves, which the court held was given, and section 41(2) due process was followed.

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02

Whether the claimants are entitled to notice pay

Holding

Notice pay is not due where summary dismissal is justified

Reasoning

Since the court found valid reasons and due process for summary dismissal, the claim for one month's notice pay of Ksh.16,000 failed. Conversely, on the counter-claim, because the claimants did not attend work during the seven-day notice period, each was liable to pay the respondent notice pay of Ksh.3,730 computed on the monthly wage of Ksh.16,000.

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03

Whether the claimants are entitled to leave pay

Holding

Leave pay is due notwithstanding the manner of termination; pro-rata at 1.75 days per month for those short of a year, and full leave for Josphat who served a full year

Reasoning

Section 28 of the Employment Act secures the right to annual leave irrespective of the reason for termination. Maurice and Hyrine worked from 23 July 2013 to 8 July 2014, a few days short of a year, earning leave for 11 months at 1.75 days per month on a wage of Ksh.16,000, amounting to Ksh.10,267 each. Josphat worked a full year and is entitled to Ksh.16,000.

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Legal principles established

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  • An employer may summarily dismiss for breach of contract, absenteeism, neglect of duty or failure to take lawful directions, subject to affording the employee notice, however short, to defend themselves
  • The right to annual leave under section 28 of the Employment Act accrues notwithstanding the reasons leading to termination
  • An employee who fails to serve the notice period after issuing/upon notice of termination is liable in notice pay to the employer

Court orders

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  1. 1.Payment of annual leave to Maurice Otieno Ngicho of Ksh.10,267
  2. 2.Payment of annual leave to Josphat Sakwa Okutoto of Ksh.16,000
  3. 3.Payment of annual leave to Hyrine Mikae Bonareri of Ksh.10,267
  4. 4.Each claimant to pay the respondent Ksh.3,730 in notice pay on the counter-claim
  5. 5.Costs of the counter-claim awarded to the respondent
  6. 6.The claimants to be paid the dues owing less the award in the counter-claim
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007

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, "Maurice Otieno Ngicho & 2 others v Brinks Security Services Limited [2021] KEELRC 1456 (KLR)", Case Analysis (2021). Cause No. 1382 of 2014 (consolidated with Causes No. 1381 and 1383 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1456/eng@2021-04-13

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