Ogutu v G4s Security Services Kenya Limited (Cause 1895 of 2016) [2022] KEELRC 1468 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the employer proved a valid reason for termination
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
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.
Whether fair procedure under Section 41 was followed
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
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.
Entitlement to reliefs
Notice pay, service gratuity (capped at the Kshs.80,000 claimed), leave pay and eight months' compensation awarded; reinstatement refused
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Claimant against the Respondent: one month's salary in lieu of notice Kshs.32,000
- 2.Service gratuity Kshs.80,000
- 3.Leave pay for 2015 Kshs.32,000
- 4.Eight months' compensation for unfair termination Kshs.256,000 (Total Kshs.400,000)
- 5.The Respondent shall pay claimant's costs for the suit
- 6.Interest shall accrue from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.