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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim, as amended on 3rd September 2018)· [2022] KEELRC 779 (KLR)

Zachariah Ondieki Maroro & 40 others v Lavington Security Limited [2022] KEELRC 779 (KLR)

Employment and Labour Relations Court
17 February 2022
LNLinnet Ndolo
3,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled 41 security guards were unfairly dismissed because their employer fired them before even hearing their side of the story.

What this practically means

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Executive summary

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Forty-one security guards sued their employer, a security company, for unlawful dismissal following events of September 2016. The Claimants alleged that after joining the Kenya National Private Security Workers Union, they were subjected to a witch hunt. On 5th September 2016, after unpaid August salaries, they went to the Respondent's offices seeking payment; while management engaged them, their positions were filled with reliever guards. They were served with show cause letters for absconding duty and participating in an illegal strike, and dismissal letters backdated to 6th September 2016. The Respondent maintained that except for the 1st Claimant (dismissed for refusing re-deployment), all Claimants were summarily dismissed for absconding assignments to join an unprotected strike, causing financial loss. The Court framed two issues: wrongful dismissal and entitlement to remedies. Applying Section 41 of the Employment Act and the principles in Anthony Mkala Chitavi and Rebecca Ann Maina, the Court found internal grievances existed which the Respondent ignored, and that rushed, inconclusive disciplinary processes were initiated. Some Claimants were dismissed before responding to show cause letters. The dismissals were held substantively and procedurally unfair. Each Claimant was awarded six months' salary in compensation and one month's pay in lieu of notice. Terminal dues (unpaid salary and leave pay) were awarded as admitted by the Respondent's Human Resource Manager, while claims for house allowance, overtime and underpayment failed for lack of evidence. Reinstatement was not granted. Individual dues were referred to a Labour Officer for tabulation within thirty days, and the Respondent was ordered to meet the costs of the case.

Key legal issues

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01

Whether the Claimants' dismissals were wrongful (substantively and procedurally unfair)

Holding

Yes - the dismissals were substantively and procedurally unfair; charges were not established and due process was not followed

Reasoning

At the material time there were internal grievances between the parties which the Respondent made no effort to address. Instead it rushed disciplinary processes that were not conclusive. The Respondent did not afford the Claimants adequate opportunity to respond to the allegations, and some were dismissed before even responding to show cause letters, contrary to Section 41 of the Employment Act.

p. 15
02

Whether the Claimants are entitled to the remedies sought

Holding

Partially - compensation of six months' salary, one month's notice pay and terminal dues awarded; house allowance, overtime and underpayment claims disallowed

Reasoning

Unpaid salary and leave pay were admitted by the Respondent's Human Resource Manager and were awarded as terminal dues. Claims for house allowance, overtime and underpayment failed for want of evidence. Reinstatement was not granted; compensation was awarded instead, with tabulation of individual dues referred to a Labour Officer.

p. 15

Legal principles established

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  • Procedural fairness requires that an employer inform the employee of contemplated charges, afford a proper opportunity to prepare and be heard, and hear and consider representations before summary dismissal
  • For an employee to effectively respond to allegations, they must be given explicit notice of the charges and adequate time to prepare a defence, per Section 41 of the Employment Act
  • Dismissals effected before employees respond to show cause letters are procedurally unfair

Court orders

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  1. 1.Each of the Claimants is awarded six (6) months' salary in compensation for unfair dismissal
  2. 2.Each Claimant is awarded one (1) month's salary in lieu of notice
  3. 3.Terminal dues comprising unpaid salary and leave pay are awarded, as admitted by the Respondent's Human Resource Manager
  4. 4.Claims for house allowance, overtime and underpayment are disallowed for lack of evidence
  5. 5.Parties directed to appear before a Labour Officer in Nairobi within seven (7) days for tabulation of dues payable to each Claimant; Respondent directed to avail all employment records
  6. 6.Labour Officer directed to submit a detailed tabulation to the Court within thirty (30) days
  7. 7.Respondent to meet the costs of the case

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (2)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Limited
    [2013] eKLR
  • Rebecca Ann Maina and 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45 referenced in reasoning)

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, "Zachariah Ondieki Maroro & 40 others v Lavington Security Limited [2022] KEELRC 779 (KLR)", Case Analysis (2022). Not stated in judgment (Memorandum of Claim, as amended on 3rd September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/779/eng@2022-02-17

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