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ELRCPartially AllowedCause No 398 of 2018· [2023] KEELRC 2894 (KLR)

Bett v Lavington Security Limited (Cause 398 of 2018) [2023] KEELRC 2894 (KLR)

Employment and Labour Relations Court
9 November 2023
896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a guard's dismissal for 'desertion' was unfair because the employer never proved he actually received the orders to relocate.

What this practically means

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Executive summary

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The claimant, formerly employed by the Respondent as a security guard from 1st April 2004 and last earning Kshs. 17,500/- per month, sued for Kshs. 395,500/- comprising salary arrears, notice pay, unpaid leave allowance, maximum compensation for unfair termination and service pay. He alleged that on 27th April 2017 the Respondent unprocedurally terminated his employment for alleged desertion of duty, claiming the charge was trumped up because he had been lawfully deployed to KIRDI offices on a dispatch note, and that redeployment letters said to have been sent to him never reached him. The Respondent filed no appearance or defence and the matter was certified as an undefended cause and proceeded by formal proof, at which the claimant testified and produced a dispatch note, employment card and payslip, and filed submissions. The court found that the employer did not demonstrate that the redeployment letters were ever received, that an employer must ensure its instructions are understood before an employee can be said to have failed to oblige, and that the employer did not attempt to demonstrate sufficient cause for termination. The termination was held unfair and unlawful under sections 43 and 45 of the Employment Act. The court declined to award the maximum 12 months' compensation sought, instead awarding one month's notice pay, one month's leave pay, two months' compensation (Kshs. 35,000/-), a certificate of service, costs of the suit, and interest at court rates on the monetary awards from the date of judgment until payment in full. Judgment was delivered at Nairobi on 9th November 2023 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Whether the alleged desertion justified termination

Holding

The termination was unfair and unlawful; the desertion charge was trumped up because the redeployment instructions never reached the claimant

Reasoning

The claimant testified he was deployed to KIRDI on a dispatch note, which was the Respondent's tool of deployment. The Respondent, having not entered appearance, did not demonstrate that the letters seeking redeployment were ever received. The employer could have summoned the claimant to the head office if the assignment had changed. The employer failed to demonstrate sufficient cause for termination, contrary to sections 43 and 45 of the Employment Act.

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02

What reliefs follow from unfair and unlawful termination

Holding

Notice pay, one month's leave pay, two months' compensation, a certificate of service, costs and interest

Reasoning

Because the claimant was not afforded the safeguards he was entitled to under the law, the court awarded one month's salary in lieu of notice, one month's leave pay, compensation for unlawful termination capped at two months' salary, a certificate of service, costs of the suit, and interest at court rates on the monetary awards from the date of judgment until payment in full.

p. 2

Legal principles established

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  • Where an employer gives an employee instructions, the employer must ensure the instructions are understood by the employee before the employee can be said to have failed to comply
  • An employer alleging termination for cause must demonstrate sufficient cause for the termination; failure renders the termination unfair and unlawful under sections 43 and 45 of the Employment Act

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 17,500/-
  2. 2.Leave for one month of Kshs. 17,500/-
  3. 3.Compensation for unlawful termination set at 2 months' salary, Kshs. 35,000/-
  4. 4.Certificate of service
  5. 5.Costs of the suit to the claimant
  6. 6.Interest at court rates on the sums awarded in (a), (b) and (c) from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (sections 43 and 45 of the Employment Act applied)

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, "Bett v Lavington Security Limited (Cause 398 of 2018) [2023] KEELRC 2894 (KLR)", Case Analysis (2023). Cause No 398 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2894/eng@2023-11-09

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