Chaworo v Benori Guard Services Limited (Employment and Labour Relations Cause 829 of 2017) [2024] KEELRC 278 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively justified on the ground of absconding duty
The abscondment ground was not established; the Claimant was dismissed without a valid reason.
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.
Whether the dismissal was procedurally fair under section 41 of the Employment Act
The dismissal was procedurally unfair as the Claimant was denied a fair hearing.
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.
Entitlement to reliefs including notice pay, compensation, house allowance, underpayment, leave and service pay
Notice pay, 10 months' compensation, house allowance, underpayment, 6 years' leave pay and service pay awarded; severance, overtime and public holiday pay refused.
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.
Legal principles established
#- 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
#- 1.Pay in lieu of notice of Kshs 10,954/-
- 2.Compensation for unlawful termination of 10 months' salary of Kshs 109,540/-
- 3.House allowance of Kshs 118,303/20
- 4.Underpayment of Kshs 374,318/60
- 5.Leave days pay of Kshs 65,724/-
- 6.Service pay of Kshs 71,201/-
- 7.Total award of Kshs 750,040/80 plus costs and interest at court rates from date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act 2007; Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.