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ELRCPartially AllowedMombasa CM ELRC Appeal (from Mombasa CM ELRC No. 129 of 2019)· [2023] KEELRC 2705 (KLR)

Mae v Brinks Security Services Limited (Appeal E078 of 2021) [2023] KEELRC 2705 (KLR)

Employment and Labour Relations Court
30 October 2023
2,901 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This first appeal arose from the dismissal in its entirety of a security guard's claim for unfair termination and terminal dues by the trial court in Mombasa CM ELRC No. 129 of 2019. The appellant, employed by the respondent from 2012 at Kshs. 10,500 per month, was redeployed following termination of the respondent's contract with Postbank. He was directed by a vague letter dated 30 September 2017 to report to the head office for redeployment, but no new posting materialised. The respondent treated him as having deserted duty and issued a notice of summary dismissal dated 8 November 2017. On appeal, the court found the direction to report to Nairobi head office vague, and that all operational dealings with the appellant were at the Mombasa branch. Relying on the mandatory provisions of Sections 41(2) and 44 of the Employment Act, the court held that an employee alleged to have deserted work does not dismiss himself; notice requiring him to show cause had to issue first. Without that notice, the summary dismissal amounted to unfair termination, entitling the appellant to notice pay and compensation under Sections 45 and 49. The court confirmed the offered terminal dues of Kshs. 182,024.90, awarded compensation of Kshs. 74,327.66 (five months' gross wage), difference in notice pay of Kshs. 4,365.50, leave pay of Kshs. 17,500, and ordered a certificate of service. Claims for house allowance, overtime and public holiday pay failed for lack of particulars. Judgment of the trial court was reviewed accordingly, with the appellant awarded 50% costs of the appeal.

Key legal issues

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01

Whether desertion of duty without notice amounts to unfair termination

Holding

Yes - without the mandatory notice under Section 41(2), summary dismissal for desertion results in unfair termination

Reasoning

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.

p. 5
02

Whether claims for unpaid salary, underpayments and leave should have been assessed by the trial court

Holding

Yes - the trial court ought to have assessed the admitted terminal dues and other pleaded claims on their merits

Reasoning

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.

p. 6
03

Burden of proving desertion and the measures taken to have the employee attend

Holding

The employer bears the duty to prove the employee was issued with notice and failed to attend; alleging desertion is not enough

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The offered amount of Kshs. 182,024.90 is confirmed and shall be paid if not already acknowledged
  2. 2.Compensation awarded at Kshs. 74,327.66
  3. 3.Difference in notice pay Kshs. 4,365.50
  4. 4.Leave pay Kshs. 17,500
  5. 5.Certificate of service shall issue
  6. 6.The appellant is awarded 50% costs of the appeal

Authorities

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Legislation

  • Employment Act, 2007Section 44(1) and (2)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 18(5)(b)
  • Employment Act, 2007Section 18(4)
  • Employment Act, 2007Sections 45 and 49
  • Employment Act, 2007Section 28 and 28(2)
  • Employment Act, 2007Section 10(6) and (7)
  • Employment Act, 2007Section 51
  • Minimum Wage Orders2016

Cases cited (6)

  • Stephen Karisa Kirao v Kilifi Plantations Limited
    [2018] eKLR
  • Titus Mutiso Mbidyo v Motor Boutique Limited
    [2019] eKLR
  • Kudheiha v Charles Waithaka Goko t/a Apple Bee Pub & Restaurant
    [2013] eKLR
  • Stephen Maganga Shungula v Rift Valley Railways (Kenya) Limited
    [2019] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
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

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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, "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.