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ELRCPartially AllowedStatement of Claim dated March 7, 2017 (ELRC)· [2023] KEELRC 199 (KLR)

Iseme v Eveready Security Guards Co Limited (Cause 446 of 2017) [2023] KEELRC 199 (KLR)

Employment and Labour Relations Court
31 January 2023
JRJAMES RIKA
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a Security Guard, sued the Respondent security company claiming he was summarily terminated on November 22, 2016 without notice, hearing or terminal dues, seeking notice pay, leave pay, service pay, house allowance arrears, general damages and overtime totalling Kshs. 388,451 plus a declaration of unfair termination. The Respondent countered that the Claimant was found drunk at a client's premises, was reassigned, absented himself from the new posting for over seven days and was lawfully declared a deserter. Both parties testified and the matter was determined on the issues of whether termination was unfair and what remedies were due. The Court held that the Respondent issued only a 'Deserter' letter without a hearing, charges or show-cause letter; desertion is an employment offence that must be proved through a disciplinary hearing, and there is no concept of termination by declaration of desertion in the Employment Act. The generalized allegations of drunkenness and sleeping on duty were not the basis of the termination decision. Termination was declared unfair. Considering the Claimant's warnings and contribution to his dismissal, the Court awarded compensation of five months' consolidated salary (Kshs. 70,550), house allowance of Kshs. 49,080 as pleaded, and gratuity of Kshs. 48,843 under the Protective Security Services Order – totalling Kshs. 168,473. Claims for three months' notice pay, leave pay and overtime were refused for lack of basis or proof. Costs and interest at court rate from the date of judgment were granted to the Claimant.

Key legal issues

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01

Whether termination by declaration of desertion without hearing was unfair

Holding

Termination was unfair; no hearing, charges or show-cause letter preceded the 'Deserter' letter, which was in effect the termination letter.

Reasoning

The Respondent issued only a letter declaring the Claimant a deserter for 7 days' absence. Desertion is an employment offence that must be proved by the employer through a disciplinary hearing. Even when the Claimant reported to the office, no charges were preferred and no disciplinary forum convened. The generalized allegations of drunkenness and sleeping on duty were not the subject of the termination decision. Section 41-style procedural fairness was therefore breached and valid reason was absent.

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02

Remedies for unfair termination

Holding

Compensation equivalent of 5 months' consolidated salary (Kshs. 70,550), house allowance of Kshs. 49,080, and gratuity of Kshs. 48,843 awarded; notice pay, leave pay and overtime refused.

Reasoning

The Claimant worked about 5 years but received warnings and contributed to his dismissal, justifying only 5 months' compensation. House allowance was payable under Regulation 5 of the Protective Security Services Order, and the Respondent did not show it was paid. Gratuity was due under Regulation 17 for over 5 years' service. Notice pay was limited to the 30 days under Regulation 24, leave was improbable, and overtime was not proved.

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Legal principles established

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  • Desertion is an employment offence which must be proved by the employer through a disciplinary hearing; there is no such thing as termination by declaration of desertion under the Employment Act.

Court orders

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  1. 1.It is declared that termination was unfair.
  2. 2.The Respondent shall pay to the Claimant compensation for unfair termination equivalent of 5 months' consolidated salary at Kshs. 70,550; house allowance at Kshs. 49,080; and gratuity at Kshs. 48,843 – total Kshs. 168,473.
  3. 3.Costs to the Claimant.
  4. 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full.

Authorities

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Legislation

  • Employment Actgeneral reference (7 days' absence)
  • Regulation of Wages [Protective Security Services] Order, 1998Regulation 24 (30 days' termination notice)
  • Regulation of Wages [Protective Security Services] Order, 1998Regulation 5 (housing allowance)
  • Regulation of Wages [Protective Security Services] Order, 1998Regulation 17 (gratuity at 18 days' salary per year over 5 years)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "Iseme v Eveready Security Guards Co Limited (Cause 446 of 2017) [2023] KEELRC 199 (KLR)", Case Analysis (2023). Statement of Claim dated March 7, 2017 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/199/eng@2023-01-31

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