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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 83 (KLR)

Onsongo v Securex Agencies (K) Limited (Cause E691 of 2020) [2024] KEELRC 83 (KLR)

Employment and Labour Relations Court
31 January 2024
JRJames Rika
1,101 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 23rd October 2017 to 13th March 2020 as an Investigations Officer rising to Zone Manager on a monthly salary of Kshs. 105,000, sued for a declaration that his termination was unfair and unlawful and compensation of 12 months' salary at Kshs. 1,260,000. He pleaded that he responded satisfactorily to a show cause letter but was dismissed without independent investigation, allegedly for victimization after raising leadership and integrity issues. The Respondent, though conceding the employment relationship and salary in its Statement of Response, did not appear at trial despite service; the hearing proceeded ex parte and the Claimant's evidence went unchallenged. The Court framed two issues: whether termination was procedurally and substantively fair, and remedies. It found procedure conformed to Sections 41 and 45 of the Employment Act - the Claimant was shown cause, replied, was heard in the presence of a trade union representative, and the decision with reasons was communicated. However, in the absence of Respondent evidence and given the Claimant's denial, the generalized allegations of insubordination, negligence, casualness and poor client relations were not fleshed out or validated, failing Sections 43 and 47(5). Termination was therefore procedurally fair but substantively unjustified, hence unfair. Considering his 2 years 5 months of service, payment of terminal benefits and absence of evidence on mitigation, the Court awarded compensation equivalent to 2½ months' salary at Kshs. 262,500, with costs to the Claimant and interest at court rate from judgment until payment in full. Judgment was dated, signed and released electronically at Nairobi on 31st January 2024 by James Rika, Judge.

Key legal issues

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01

Procedural fairness of termination

Holding

Procedural fairness was satisfied - show cause letter, reply, disciplinary hearing with trade union representation, and communication of decision complied with Section 41

Reasoning

The Claimant conceded he was issued a letter to show cause, replied, was invited to a disciplinary hearing, and was heard in the presence of a shop floor trade union representative. The decision to terminate was communicated with reasons. The Court held this conformed to the minimum statutory standards of fairness under Sections 41 and 45 of the Employment Act.

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02

Substantive justification for termination

Holding

No valid reasons established; the generalized allegations of insubordination, negligence and poor relations were not fleshed out or validated

Reasoning

The Respondent did not adduce evidence, so the Claimant's denial of the allegations stood unchallenged. The three grounds in the termination letter were generalized and never validated through investigation or evidence, failing the minimum statutory standards of substantive justification under Sections 43 and 47(5) of the Employment Act.

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03

Quantum of compensation

Holding

Compensation awarded at 2½ months' salary (Kshs. 262,500) rather than 12 months sought

Reasoning

The Claimant worked only 2 years and 5 months, was paid terminal benefits, gave no evidence on how long he expected to work or whether he obtained alternative employment, and there was no evidence he contributed to the termination. These factors militated against the maximum 12 months' compensation sought.

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Legal principles established

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  • Procedural fairness under Section 41 does not substitute for substantive justification under Sections 43 and 47(5) of the Employment Act
  • Generalized, unvalidated allegations against an employee cannot constitute valid reasons for termination
  • Evidence unchallenged on ex parte hearing is taken as uncontested

Court orders

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  1. 1.It is declared that termination was unfair
  2. 2.The Respondent shall pay to the Claimant compensation for unfair termination, equivalent of 2½ months' salary at Kshs. 262,500
  3. 3.Costs to the Claimant
  4. 4.Interest allowed at court rate, from the date of Judgment till payment is made in full
Jurisdiction invoked
Employment Act, Sections 41, 43, 45 and 47(5)

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, "Onsongo v Securex Agencies (K) Limited (Cause E691 of 2020) [2024] KEELRC 83 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/83/eng@2024-01-31

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