Mae v Brinks Security Services Limited (Appeal E078 of 2021) [2023] KEELRC 2705 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer cannot claim an employee deserted duty without first issuing the notice required under Section 41(2), making the dismissal unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether desertion of duty without notice amounts to unfair termination
Yes - without the mandatory notice under Section 41(2), summary dismissal for desertion results in unfair termination
The letter directing the appellant to report to Nairobi head office was vague and gave no specific address. The Mombasa branch had a manager and supervisor who should have coordinated his redeployment. An employee cannot dismiss himself; notice must issue under Section 41(2) requiring the employee to show cause before summary dismissal. The trial court erred in finding summary dismissal was lawful.
Whether claims for unpaid salary, underpayments and leave should have been assessed by the trial court
Yes - the trial court ought to have assessed the admitted terminal dues and other pleaded claims on their merits
The respondent tabulated terminal dues of Kshs. 182,024.90 which the trial court ought to have confirmed. Claims for unpaid salary for October/November 2017, underpayments and leave pay were admitted or not materially challenged. All claims made by an employee should be addressed on the merits under Section 18(4) of the Act.
Burden of proving desertion and the measures taken to have the employee attend
The employer bears the duty to prove the employee was issued with notice and failed to attend; alleging desertion is not enough
Desertion is a serious offence rendering an employee liable to summary dismissal, but the employer must call evidence of the measures put in place to have the employee attend under Section 41(2). Where the employer fails, the termination is unfair, entitling the employee to notice pay and compensation under Sections 45 and 49.
Legal principles established
#- An employee alleged to have deserted work does not dismiss himself; the employer must issue notice under Section 41(2) before summary dismissal for desertion
- All claims made by an employee should be addressed on the merits
- A certificate of service is a legal right that must issue whatever the reason for termination
Court orders
#- 1.The offered amount of Kshs. 182,024.90 is confirmed and shall be paid if not already acknowledged
- 2.Compensation awarded at Kshs. 74,327.66
- 3.Difference in notice pay Kshs. 4,365.50
- 4.Leave pay Kshs. 17,500
- 5.Certificate of service shall issue
- 6.The appellant is awarded 50% costs of the appeal
- On appeal from
- Chief Magistrate's Court, Mombasa (ELRC)
- CM ELRC No. 129 of 2019
- Jurisdiction invoked
- First appeal from the trial court in employment and labour relations proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mae v Brinks Security Services Limited (Appeal E078 of 2021) [2023] KEELRC 2705 (KLR)", Case Analysis (2023). Mombasa CM ELRC Appeal (from Mombasa CM ELRC No. 129 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2705/eng@2023-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.