Wandor v Riley Falcon Security Services Ltd (Cause 497 of 2017) [2024] KEELRC 1670 (KLR)
The bottom line
#A Nakuru court ruled a security guard was unfairly sacked without a hearing, awarding him over Kshs 300,000 because the employer could not prove its contract-expiry defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the contract lapsed or the Claimant was terminated
The Claimant was terminated; the claim that the contract expired on 25th May 2015 was untrue as evidenced by the letter of termination dated 2nd July 2015
The court examined the documents and found a letter of termination indicating the Claimant's services were ended for refusing to report to a new assignment. The Respondent produced no contract documents to substantiate the assertion that the engagement lapsed by expiry. Consequently, the expiry defence failed and the termination had to satisfy statutory fairness requirements.
Whether the termination was procedurally fair
The termination was procedurally unfair as the Respondent did not follow section 41 of the Employment Act - no explanation of reasons, no hearing, no disciplinary process
Section 41 requires an employer to explain the reasons for termination and allow the employee a representative during the explanation. RW-1 conceded no disciplinary hearing was conducted. Without a hearing, the validity of the reasons could not be established, and under section 45(2) the employer bears the burden of proving valid reason, fair reason and fair procedure, none of which was discharged.
What remedies flow from the unfair termination
Notice pay, one year's leave pay, underpayment, 11 days' unpaid salary and 10 months' salary as compensation under section 49(1)(c), plus certificate of service and costs
Having found the termination unfair, the court exercised its discretion under section 49 of the Employment Act to award the reliefs proved, granting maximum-range compensation of 10 months' salary given the Claimant was bundled out without any hearing, and awarded the pleaded pecuniary heads substantiated by evidence.
Legal principles established
#- Termination of employment must be supported by a valid reason and fair procedure, including a hearing, before it is fair under sections 41 and 45 of the Employment Act
- A party alleging that a contract lapsed must exhibit the contract to prove that fact
Court orders
#- 1.One-month salary in lieu of notice of Kshs 11,623.16
- 2.One year leave not paid for 2014/2015 of Kshs 11,512
- 3.Underpayment of wages as pleaded of Kshs 155,946.80
- 4.11 days worked in May 2015 not paid of Kshs 5,108.80
- 5.10 months' salary as compensation for unfair and unlawful termination of Kshs 116,231, subject to statutory deductions
- 6.The Claimant be issued with a Certificate of Service
- 7.The Respondents to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandor v Riley Falcon Security Services Ltd (Cause 497 of 2017) [2024] KEELRC 1670 (KLR)", Case Analysis (2024). Employment Cause (Memorandum of Claim dated 20th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1670/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.