Kenya National Private Security Workers Union v BOB` Morgan Services Limited (Cause 1627 of 2017) [2022] KEELRC 4130 (KLR)
The bottom line
#A Kenyan court ruled Kenya Breweries unfairly sacked a security guard, awarding him six months' salary because it gave him only two hours to respond and no representation.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved a valid and fair reason for termination (substantive fairness)
The respondent failed to prove that the grievant was absent without permission; the grievant proved on a balance of probability that he was authorised to be away for two days
The grievant produced a dispatch note dated June 30, 2016, signed by field officer Daniel Langat, clearing him for two days. The respondent challenged the note's authenticity only in cross-examination, not in its defence or RW1's testimony in chief, and produced no statement or affidavit from Langat disowning it. The disciplinary proceedings also recorded Langat admitting he filled the form. The court therefore found the dismissal reason unproved.
Whether the disciplinary process met the procedural fairness requirements of sections 41(1) and 45(2)(c) of the Employment Act
The termination was procedurally unfair: representation was not offered, and the grievant had only two hours to respond to the show cause letter
Although the grievant received and answered a show cause letter and attended a hearing, RW1 admitted he was unrepresented, and no invitation allowing a representative was exhibited, nor any waiver recorded. The two-hour deadline to respond was unreasonable where the employee's livelihood was at stake. Following Patrick Abuya v ICPAK, the process fell short of the statutory threshold.
Whether the grievant was entitled to the reliefs sought, namely 12 months' salary as compensatory damages
Compensatory damages of six months' gross salary (Kshs 105,000.00) awarded, being half of the 12 months claimed
Having found both substantive and procedural unfairness, the court exercised its discretion under section 49 of the Employment Act framework and awarded six months' gross salary rather than the maximum 12 months sought, entering judgment for Kshs 105,000.00 with interest and costs.
Legal principles established
#- An employer must prove both substantive and procedural fairness to sustain a termination; failure to prove the reason renders the termination unfair
- An employer bears the burden of proving procedural fairness, including that an employee was offered and waived or refused representation at a disciplinary hearing
- A two-hour period to respond to a show cause letter is unreasonable and offends procedural fairness
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.The grievant awarded compensatory damages of Kshs 105,000.00, equivalent to six months of his gross salary
- 3.Interest on the award at court rates from the date of judgment until payment in full
- 4.The respondent to bear the costs of the suit
- Jurisdiction invoked
- First-instance jurisdiction under the Employment and Labour Relations Court Act over a claim for compensatory damages for unfair termination under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v BOB` Morgan Services Limited (Cause 1627 of 2017) [2022] KEELRC 4130 (KLR)", Case Analysis (2022). Cause No 1627 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4130/eng@2022-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.