Ngaanga v Xfor Security Solutions Kenya Limited (Employment and Labour Relations Cause 1782 of 2017) [2023] KEELRC 1030 (KLR)
The bottom line
#A Kenyan employer who sacks an absent worker for absconding must prove it tried to contact them first — otherwise the dismissal is unfair and compensation follows.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded duty
The Respondent failed to discharge its burden of proving desertion
Desertion requires an intention not to return, and good practice demands the employer contact an absent employee. The Respondent's HR Manager conceded in cross-examination that no letter was written to the Claimant, to his last known address, or to the Labour Officer, and no attendance register was produced. Absent proof of efforts to make the Claimant resume duty, the desertion claim failed.
Whether the termination was procedurally fair
It was procedurally unfair under section 41 of the Employment Act
Section 41 is mandatory. The Claimant was summoned after finishing work and simply told his services were terminated, without reasons or notice and without a hearing. Deviation from the mandatory procedure renders a termination unfair irrespective of the outcome of the process.
Whether the termination was substantively justified
It was not; the Respondent proved no valid reason
Section 43 obligates the employer to prove the reasons for termination and section 45(2) requires those reasons to be fair and valid. Since the desertion allegation was not proved, the Respondent failed to discharge this burden and the dismissal was substantively unjustified.
Whether the Claimant was entitled to overtime pay
No; the payslip showed overtime and public holiday payments
While the employer must keep employment records under section 74, the burden of establishing hours worked in excess of the legal maximum rests on the employee. The Claimant's own payslip bore items for overtime and public holidays and the computation appeared correct, so the claim was not proved.
Reliefs: notice pay, leave pay and compensation
Awarded one month's notice (Kshs 13,400), unpaid leave (Kshs 26,800) and 7 months' compensation (Kshs 93,800)
Having found the termination both procedurally and substantively unfair and no notice given, notice pay was due. Under section 74 the employer keeps leave records, and none was produced to show leave was taken or paid for, so unpaid leave was awarded. Compensation under section 49 was set at 7 months given the circumstances of each case.
Legal principles established
#- An employer alleging desertion must demonstrate reasonable efforts to contact the employee before summary dismissal
- Dismissal on account of absconding requires a show-cause letter and reasonable attempts at contact
- Fair termination requires both substantive justification and procedural fairness under sections 41 and 45 of the Employment Act
- The burden of proving overtime rests with the employee
Court orders
#- 1.A declaration that the termination of the Claimant from employment was both procedurally and substantively unfair.
- 2.One month salary in lieu of notice - Kshs 13,400.
- 3.Unpaid/Untaken leave - Kshs 26,800.
- 4.7 months compensation - Kshs 93,800.
- 5.Cost of the suit & interest.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngaanga v Xfor Security Solutions Kenya Limited (Employment and Labour Relations Cause 1782 of 2017) [2023] KEELRC 1030 (KLR)", Case Analysis (2023). Memorandum of Claim dated September 1, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1030/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.