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ELRCPartially AllowedCause No E006 of 2023· [2024] KEELRC 997 (KLR)

Kenya National Private Security Workers Union v Patriotic Group of Companies (Cause E006 of 2023) [2024] KEELRC 997 (KLR)

Employment and Labour Relations Court
12 April 2024
2,939 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 a security guard who resigned over unpaid wages and poor conditions was unfairly forced out, awarding him over Kshs 368,000.

What this practically means

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Executive summary

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The claimant union sued on behalf of its member, a night guard employed by the respondent from 20th April 2021 at Kshs 10,000 per month, reduced to Kshs 8,000 in January 2022 without consent. He alleged uncompensated overtime, rest days, public holidays and annual leave, underpayment below the gazetted minimum wage, and resigned on 10th November 2022 citing a toxic work environment. The claim proceeded by formal proof as the respondent, though it filed a response, tendered no evidence. The court held the resignation was not voluntary but amounted to constructive dismissal, adopting the test of repudiatory breach from the Coca Cola case. Constructive dismissal being unlawful and unfair, the court awarded compensation of two months' gross salary (Kshs 36,160), salary underpayment of Kshs 99,420 under section 48 of the Labour Institutions Act, house allowance at 15% of the minimum wage (Kshs 38,908) under section 31 of the Employment Act, overtime of Kshs 157,092 computed per the Ministry of Labour Circular of 2018, and half the computed off/rest day arrears (Kshs 36,888) since normal rates had been paid on those days. The claim for public holidays was declined for lack of particulars. Judgment totalling Kshs 368,468 was entered, subject to statutory deductions, with costs of the suit plus interest at court rates from the date of judgment.

Key legal issues

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01

Whether the grievant's resignation amounted to constructive dismissal

Holding

Yes - the resignation letter detailed the respondent's breaches (salary reduction, unpaid house allowance, overtime and public holidays), proving the resignation was not voluntary and amounted to constructive dismissal.

Reasoning

The court defined resignation as voluntary and constructive dismissal as conduct leaving an employee little choice but to resign, requiring proof of forced resignation, intolerable conduct or repudiatory breach, and no condonation. The respondent filed a response but tendered no evidence to rebut the claimant's case. The resignation letter, reproduced in the judgment, listed the employer's breaches and toxic work environment, satisfying the court that the grievant was constructively dismissed.

p. 5
02

Whether the grievant was entitled to compensation for unfair termination

Holding

Yes - two months' gross salary, based on the minimum salary of Kshs 15,722 plus house allowance, given service of less than two years with no disciplinary issues.

Reasoning

Constructive dismissal being unlawful and unfair, section 45 of the Employment Act rendered the termination unfair as it lacked valid reason and fair procedure. Section 41 was cited for the procedural requirements. The court exercised its discretion under section 49 (implied) to award compensation pegged at two months' gross salary given the short service period of less than two years and an unblemished record.

p. 6
03

Whether the respondent underpaid the grievant's basic salary

Holding

Yes - the grievant was paid Kshs 10,000 then 8,000, below the gazetted minimum of Kshs 14,038 (2019 Order) and Kshs 15,722 (2022 Order); Kshs 99,420 awarded.

Reasoning

Section 48(1)(a) of the Labour Institutions Act entitles an employee to salary arrears where wages paid fall below the gazetted minimum wage. The court compared the General Wage Orders of 2019 and 2022 with the amounts actually paid, and found underpayment. The reduction of salary without consent was also found contrary to section 19(2) of the Employment Act and an unfair labour practice. The claimant's computation of Kshs 99,420 was accepted.

p. 6
04

Entitlement to house allowance, overtime and rest/off days

Holding

House allowance at 15% of the minimum wage allowed (Kshs 38,908); overtime of Kshs 157,092 allowed; rest/off days awarded at half the computed sum (Kshs 36,888) since normal rates were paid.

Reasoning

Section 31 of the Employment Act entitles every employee to reasonable housing at the employer's expense; since no housing was provided, 15% of the gazetted minimum basic salary was awarded for the months served. Overtime and off days were proved by unrebuted evidence and quantified per the Ministry of Labour Circular of 20th December 2018. Because the grievant received normal rates on off days, only half the double-pay arrears was awarded.

p. 6
05

Claim for public holidays

Holding

Declined for lack of particulars.

Reasoning

The court held that a party must plead with sufficient particularity, and the court cannot fill gaps left in pleadings. The claim for public holiday pay was unsupported by particulars and therefore declined despite the general finding that the grievant worked without compensation.

p. 7

Legal principles established

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  • Constructive dismissal requires proof of forced resignation caused by the employer's intolerable conduct or fundamental/repudiatory breach of the employment contract, which the employee did not condone and resigned without undue delay.
  • A resignation prompted by the employer's breaches, as set out in the resignation letter, is not voluntary and amounts to constructive dismissal.
  • An employee whose termination was not grounded on a valid reason and fair procedure is entitled to compensation under sections 45 and 41 of the Employment Act.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent
  2. 2.Compensation for unfair termination awarded at Kshs. 36,160.00 (two months' gross salary)
  3. 3.Salary underpayment awarded at Kshs. 99,420.00
  4. 4.House allowance awarded at Kshs. 38,908.00
  5. 5.Overtime worked awarded at Kshs. 157,092.00
  6. 6.Rest/off days worked awarded at Kshs. 36,888.00
  7. 7.Total award of Kshs. 368,468.00 subject to statutory deductions
  8. 8.Costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Labour Relations Actsection 69
  • Employment Actsection 10
  • Employment Actsection 19(2)
  • Employment Actsection 51
  • Employment Actsection 31
  • Employment Actsection 27(2)
  • Employment Actsection 35 and 36
  • Employment Actsection 45
  • Employment Actsection 41
  • Labour Institutions Actsection 48(1)(a)
  • Protective Security Services Orderparagraphs 5, 7 and 9(2)
  • General Wage Order (Legal Notice No. 2 of 2019)minimum wage for night security guards
  • General Wage Order (Legal Notice No. 125 of 2022)minimum wage for night security guards
  • Ministry of Labour Circularformula for assessing overtime (20th December 2018)
  • Constitution of Kenya, 2010(referenced generally as to violated rights)
  • ILO Convention No. 1 of 19198-hour shift
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Kenya Union of Commercial, Food and Allied Workers v Generation Electric Allied Limited
    [2019] eKLR
  • Coca Cola East and Central Africa
    (2015) eKLR
Jurisdiction invoked
Section 69 of the Labour Relations Act, 2007 (referral of unresolved trade dispute by conciliator)

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, "Kenya National Private Security Workers Union v Patriotic Group of Companies (Cause E006 of 2023) [2024] KEELRC 997 (KLR)", Case Analysis (2024). Cause No E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/997/eng@2024-04-12

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