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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 278 (KLR)

Chaworo v Benori Guard Services Limited (Employment and Labour Relations Cause 829 of 2017) [2024] KEELRC 278 (KLR)

Employment and Labour Relations Court
13 February 2024
3,863 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 that firing a worker for absconding without attempting to contact him was unfair, awarding him Kshs 750,040 plus costs.

What this practically means

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Executive summary

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The Claimant, a security guard, sued alleging wrongful and unfair summary dismissal in April 2015 after questioning the loss of umbrellas and caps at a client's premises, and claiming notice pay, compensation, house allowance, underpayment against statutory minimum wages, overtime, public holiday and leave pay, and service pay. The Respondent denied the claims, asserting the Claimant was a casual worker engaged on need basis who absconded duty and was lawfully dismissed after a notice to show cause and a disciplinary hearing he failed to attend. The court framed three issues: substantive justification, procedural fairness, and entitlement to reliefs. It found the abscondment ground unestablished because the Respondent made no effort to trace the Claimant or properly serve the NTSC, which lacked his postal address; the dismissal was therefore without valid reason. On procedure, the court held that since the NTSC was never delivered, the Claimant was denied the fair hearing guaranteed by section 41 of the Employment Act, rendering the dismissal procedurally unfair. On reliefs, the court fixed the employment period at 2005 to 2015 (10 years) given the Respondent's 2002 incorporation, held the casual engagement convertible under section 37, and awarded notice pay, 10 months' compensation, house allowance, underpayment, six years' leave pay and service pay totalling Kshs 750,040/80, plus costs and interest. Severance pay was refused as the Claimant was not declared redundant, and overtime and public holiday claims were declined as too difficult to ascertain after so many years. Judgment was delivered virtually in Nairobi on 13th February 2024.

Key legal issues

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01

Whether the summary dismissal was substantively justified on the ground of absconding duty

Holding

The abscondment ground was not established; the Claimant was dismissed without a valid reason.

Reasoning

RW1 admitted no effort was made to reach the Claimant or his family to ascertain his whereabouts. The NTSC and summary dismissal letters lacked the Claimant's postal address and were allegedly to be picked from the offices, yet the Claimant testified he only saw them in court. Following the cited authorities, dismissal on account of absconding must be preceded by evidence of reasonable attempts to contact the employee and proper service of a show cause letter.

p. 5
02

Whether the dismissal was procedurally fair under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair as the Claimant was denied a fair hearing.

Reasoning

Section 41 requires an employer to explain reasons for termination and hear the employee's representations before summary dismissal. RW1 testified the NTSC was not delivered to the Claimant. Since the Claimant was never informed of the intention to dismiss nor given a chance to be heard, the mandatory procedural requirements of section 41 were breached.

p. 6
03

Entitlement to reliefs including notice pay, compensation, house allowance, underpayment, leave and service pay

Holding

Notice pay, 10 months' compensation, house allowance, underpayment, 6 years' leave pay and service pay awarded; severance, overtime and public holiday pay refused.

Reasoning

Having found the dismissal substantively unjustified and procedurally unfair, the court awarded the statutory reliefs. The court fixed service as 2005-2015 (10 years) given the company's 2002 incorporation. Casual terms converted under section 37. Employer's failure to produce employment records under section 74 led the court to accept the Claimant's claims on leave and underpayment, though overtime and public holiday claims were too remote to ascertain.

p. 6

Legal principles established

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  • An allegation that an employee has absconded duties requires the employer to demonstrate that efforts were made to contact the employee without success.
  • Where an employer pays below the minimum wage, the minimum rates under the Wages Order substitute the inferior contractual terms.
  • Long-serving casual employees are entitled to conversion of their terms into term contracts under section 37 of the Employment Act.

Court orders

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  1. 1.Pay in lieu of notice of Kshs 10,954/-
  2. 2.Compensation for unlawful termination of 10 months' salary of Kshs 109,540/-
  3. 3.House allowance of Kshs 118,303/20
  4. 4.Underpayment of Kshs 374,318/60
  5. 5.Leave days pay of Kshs 65,724/-
  6. 6.Service pay of Kshs 71,201/-
  7. 7.Total award of Kshs 750,040/80 plus costs and interest at court rates from date of judgment till full payment

Authorities

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Legislation

  • Employment ActSection 31(1)
  • Employment ActSection 35
  • Employment ActSection 35(5) and (6)
  • Employment ActSection 36
  • Employment ActSection 37
  • Employment ActSection 41
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 74
  • Labour Institutions Act 2007Section 48
  • Regulation of Wages (General)(Amendment) Orders 2004, 2006, 2010, 2011, 2012, 2013 and 2015Minimum wage orders
  • Retirement Benefits ActNot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (5)

  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd
    [2020] eKLR
  • Abigael Jepkosgei Yator & another vs China Hanan International Co. Ltd
    [2018] eKLR
  • Simon Mbithi Mbane v Inter Security Services Limited
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Irungu Githae v Mutheka Farmers' Co-operative Society Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act 2007; Labour Relations Act)

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, "Chaworo v Benori Guard Services Limited (Employment and Labour Relations Cause 829 of 2017) [2024] KEELRC 278 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/278/eng@2024-02-13

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