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ELRCPartially AllowedELRC Cause No. 1895 of 2016· [2022] KEELRC 1468 (KLR)

Ogutu v G4s Security Services Kenya Limited (Cause 1895 of 2016) [2022] KEELRC 1468 (KLR)

Employment and Labour Relations Court
17 June 2022
4,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled G4S unfairly sacked its driver after an accident, awarding him Kshs.400,000 because the employer couldn't prove he was at fault.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from February 2010 as a dog handler and later promoted to driver, was summarily dismissed following a road traffic accident on 6th June 2015 involving the Respondent's Isuzu NKR on Langata Road. He sued for unfair and unlawful termination, seeking one month's notice pay, service pay, leave pay for 2015, general damages, reinstatement in the alternative, and costs. The Respondent maintained that the Claimant caused the accident by overspeeding and negligent driving, that a disciplinary hearing was conducted, and that dismissal was for gross misconduct. The Court framed two issues: validity of the termination both procedurally and substantively, and entitlement to reliefs. On substance, the Court found the Claimant and the Respondent's representative had been convicted of driving and releasing a defective vehicle respectively, that the Respondent's own investigation report recorded a faulty speedometer and probable brake failure, and that tracking data showed the Claimant was not overspeeding just before impact. The employer therefore failed to discharge its burden under Sections 43, 45 and 47(5) of the Employment Act. On procedure, although a disciplinary hearing was held, no show cause letter with the charges or the accident report was issued. The dismissal was held unfair and unlawful. The Court awarded one month's notice pay (Kshs.32,000), service gratuity (Kshs.80,000, the amount claimed despite entitlement to more), leave pay (Kshs.32,000) and eight months' compensation (Kshs.256,000), totaling Kshs.400,000, with costs and interest from judgment. Reinstatement was refused as time-barred under Section 12(3)(vii) of the ELRC Act and for lack of special circumstances.

Key legal issues

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01

Whether the employer proved a valid reason for termination

Holding

The Respondent failed to prove a valid reason; the police charge and conviction showed the vehicle was defective and the employer's own report showed no overspeeding just before the accident

Reasoning

The Claimant was convicted of driving a defective motor vehicle and the Respondent's representative of releasing a defective vehicle; neither challenged that conviction. The Respondent's own investigation report recorded a faulty speedometer and stated the brakes probably failed after harsh braking. Tracking data showed the Claimant driving at moderate speeds (47 km/ph) just before impact. Charging him with overspeeding without a functional speedometer was unfair. The burden under Sections 43 and 47(5) of the Employment Act lay on the employer, which it failed to discharge.

p. 8
02

Whether fair procedure under Section 41 was followed

Holding

The disciplinary hearing accorded the Claimant a hearing, but no show cause letter with charges or the accident report was issued, contributing to procedural unfairness

Reasoning

The Court perused the disciplinary minutes and found the Claimant was heard in line with Section 41. However, there was no evidence he was issued with a show cause letter containing the charges or given the accident report used at the hearing. Substantive unfairness having been established, the dismissal was unfair and unlawful under Section 45.

p. 8
03

Entitlement to reliefs

Holding

Notice pay, service gratuity (capped at the Kshs.80,000 claimed), leave pay and eight months' compensation awarded; reinstatement refused

Reasoning

Having found unfair termination, the Court awarded one month's notice pay under Sections 36 and 49(1); service gratuity under the Protective Security Services Order at 18 days' pay per year for five years, capped at the sum claimed; leave pay for 2015 which the Respondent did not rebut; and eight months' salary as compensation under Section 49(4) considering length of service and absence of valid reason. Reinstatement was time-barred.

p. 9

Legal principles established

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  • A conviction following a guilty plea by the employer's own employee is proof that the vehicle was defective, where the employer did not adduce evidence to counter the police report
  • For a termination to be fair it must pass both substantive justification and procedural fairness

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent: one month's salary in lieu of notice Kshs.32,000
  2. 2.Service gratuity Kshs.80,000
  3. 3.Leave pay for 2015 Kshs.32,000
  4. 4.Eight months' compensation for unfair termination Kshs.256,000 (Total Kshs.400,000)
  5. 5.The Respondent shall pay claimant's costs for the suit
  6. 6.Interest shall accrue from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Sections 8, 35(6)(d), 36, 41, 43, 45(2), 47(5), 49(1), 49(4), 50
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Regulations of Wages and Conditions of Employment (Protective Security Services) Orderservice gratuity at 18 days' salary per completed year
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (11)

  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    [2013] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Alphonce Machanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Maurice Adongo Anyango v Kenyatta International Conference Center
    [2020] eKLR
  • Nicholus Muasya Kyula v Farmchem Ltd
    [2012] eKLR
  • Joseph Mwangi Gioche v Gatamaiyu Dairy Farmer's Cooperative Society Limited
    [2019] eKLR
  • John Magiri Heho v Kenya International Limited
    [2018] eKLR
  • Benson Muraguri Maina v Kassam & Bros Co. Ltd
    [2016] eKLR
  • Robert Kimutai Rutto v Hotel Cathay Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and 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, "Ogutu v G4s Security Services Kenya Limited (Cause 1895 of 2016) [2022] KEELRC 1468 (KLR)", Case Analysis (2022). ELRC Cause No. 1895 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1468/eng@2022-06-17

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