Festo v Mars Security Guards Limited (Cause 823 of 2017) [2022] KEELRC 42 (KLR)
The bottom line
#Kenya's Employment Court ruled that telling an employee to 'reapply' for his job counts as termination, and employers must prove any dismissal was fair.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment was terminated
Yes. The memos of September 3, 2016 proved the claimant was on duty; the respondent's desertion plea was unpleaded and unproven, and telling the claimant to reapply was an overt act terminating employment
The claimant produced two memos dated September 3, 2016 showing he was on duty and suspended pending investigations. The respondent's desertion story appeared for the first time in evidence, contradicting its pleadings. The respondent deliberately declined to testify on the outcome of the investigations or what happened after September 5, 2016. Following Rebecca N. Nyangolo v Prashant Raval, the instruction to reapply was an overt act by the employer terminating the employment.
Whether the termination was procedurally fair
No. The respondent led no evidence that the mandatory procedure under section 41 was followed
Section 41 imposes a mandatory procedure with information, hearing and consideration components, and the employer bears the burden of proving compliance. Because the respondent maintained that the claimant deserted duty, it led no evidence demonstrating that the procedure was adhered to, and so did not discharge its burden of proof; the termination was procedurally unfair.
Whether the termination was substantively fair
No. The respondent failed to prove any valid and fair reason for termination
Sections 43 and 45(2) of the Employment Act place the burden on the employer to prove, and to establish the validity and fairness of, the reason for termination. Having rejected the desertion rationale as untrue, the court found the respondent failed to discharge the twin legal burdens, rendering the termination substantively unfair.
What remedies were available
One month's notice pay, NSSF refund of Kshs 1,600, 8 months' gross salary compensation (Kshs 96,000), September 2016 salary, and uniform refund of Kshs 4,000; service pay, leave pay and 'distress' claims declined
Applying section 36, only one month's notice pay was due as three months was neither contractual nor statutory. Section 35(6) barred service pay for an NSSF member. Leave and distress claims failed for want of proof and credibility. Compensation of 8 months' gross salary under section 49(1)(c) reflected the unfairness, the respondent's blatant impunity, length of service and the claimant's non-contribution.
Legal principles established
#- Dismissal is ultimately caused by the employer; some overt action by the employer must be present to bring the employment into termination
- An employer's direction to an employee to reapply for his job is an overt act amounting to termination of employment
- Fairness of termination involves both procedural and substantive fairness; absence of either renders termination unfair under section 45 of the Employment Act
- Section 41 of the Employment Act prescribes a mandatory three-component procedure: information, hearing (representations), and consideration of representations
- Parties are bound by their pleadings; a departure in evidence not pleaded is an afterthought
Court orders
#- 1.A declaration that the termination of the claimant's employment was procedurally and substantively unfair
- 2.One month's salary in lieu of notice, Kshs 12,000
- 3.Refund of 4 months withheld NSSF remittances, Kshs 1,600
- 4.Compensation pursuant to section 49(1)(c) of the Employment Act, Kshs 96,000
- 5.Unpaid salary for the month of September 2016, Kshs 12,000
- 6.Refund for uniforms, Kshs 4,000
- 7.Interest on the awarded amounts at court rates from the date of filing the suit till full payment
- 8.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 35, 36, 41, 43, 45, 49(1)(c)) over a claim for unfair termination and terminal dues
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Festo v Mars Security Guards Limited (Cause 823 of 2017) [2022] KEELRC 42 (KLR)", Case Analysis (2022). Cause No 823 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/42/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.