G4S Kenya Ltd v Odowa (Appeal E029 of 2022) [2023] KEELRC 467 (KLR)
The bottom line
#A Kenyan court cut a security guard's unfair dismissal compensation but confirmed employers must involve an employee's union in disciplinary hearings.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the disciplinary hearing
The hearing was procedurally unfair because the Union was not involved despite the respondent being a subscription-paying union member
The respondent's pay slip showed he was a subscription-paying member of the Kenya National Private Security Workers Union, and the Union had previously reported a trade dispute to the Cabinet Secretary. The court held the employer should have involved the Union even without a recognition agreement, agreeing with the Magistrate that the hearing was tainted by failure to involve the Union.
Substantive fairness of the dismissal
The appellant proved valid reasons for dismissal - breaches of the Courier Operations Manual amounting to dishonesty
The respondent admitted skipping cash receipt sheets and failing to account for customer monies. Although the investigations report was unsigned by its author, the respondent did not object to its reliance at the disciplinary hearing and the author was present and available for questioning. The breaches of the Courier Operations Manual manifested dishonesty warranting dismissal.
Quantum of compensation for unfair termination
Maximum compensation of 12 months was excessive; 8 months' gross salary was appropriate
Applying the factors in section 49(4) of the Employment Act, including the respondent's approximately 17 years of service from 2003 to 2020, and the finding that the appellant proved the reasons for dismissal but got the process wrong, the court held that compensation equivalent to 8 months' gross salary would have been appropriate, reducing the award to Kshs 115,368/-.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence and make its own findings, conscious that it did not see the witnesses
- An employer aware that an employee is a subscription-paying member of a union should involve the Union in the disciplinary process even absent a recognition agreement
- Sections 43 and 45 of the Employment Act place the burden of proving reasons for termination on the employer
Court orders
#- 1.The appeal fails save that the award of compensation is vacated and substituted with compensation of Kshs 115,368/- (equivalent of 8 months' gross salary)
- 2.The other awards by the Principal Magistrate (gratuity of Kshs 245,157/- and one month's salary in lieu of notice of Kshs 14,421/-) are sustained
- 3.Each party to bear own costs of the appeal
- 4.Respondent to have costs before the trial court
- On appeal from
- Principal Magistrate's Court, Bondo
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court under the Employment Act framework (Employment and Labour Relations Court appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "G4S Kenya Ltd v Odowa (Appeal E029 of 2022) [2023] KEELRC 467 (KLR)", Case Analysis (2023). Memorandum of Appeal filed 25 August 2022 (appeal from Bondo PMCC judgment of 28 July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/467/eng@2023-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.