Kalinda v Race Guards Limited (Employment and Labour Relations Cause 331 of 2017) [2024] KEELRC 2274 (KLR)
The bottom line
#A Nairobi court ruled a security guard was unfairly terminated and awarded him notice pay, compensation, leave pay, and years of unpaid minimum wage differences.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent unfairly terminated the Claimant's employment
Yes. The Claimant discharged his prima facie burden under section 47(5); the Respondent failed to prove desertion or adherence to sections 41, 43 and 45 of the Employment Act.
The court held that desertion must be proved by evidence of genuine efforts to contact the employee, including written communication to the last known address. The Respondent's witness gave vague, unsupported testimony about phone calls and contacting relatives, and no show cause letter was issued. The Respondent did not call the supervisor Mr. Mutua, whose alleged instruction to stop reporting to work supported the Claimant's version of termination without cause.
Entitlement to notice pay, compensation, leave pay and underpaid salary
The Claimant was awarded one month's salary in lieu of notice, seven months' gross salary as compensation, leave pay for three years, and the differential between his actual salary of KShs. 6,000 and the statutory minimum wage from 1st August 2013 to 31st July 2016.
Termination being unfair, section 35 entitled the Claimant to notice pay. Section 49 discretionary compensation was assessed at seven months given 12 years of service and the unprocedural manner of termination. Wages Order minimums were held to be implied contractual terms under section 48 of the Labour Institutions Act, and leave compensation was limited by section 90 to the three years preceding suit.
Legal principles established
#- The burden of proof in unfair termination disputes is dualistic: the employee must first establish a prima facie case under section 47(5), whereupon the burden shifts to the employer to justify the termination.
- Where an employer asserts desertion, it must prove it made efforts to contact the employee and indicate intention to take disciplinary action.
- Minimum wages prescribed in a Wages Order constitute terms of the contract of employment and cannot be out-contracted.
- The right to annual leave obliges the employer to facilitate its enjoyment; failure by the employee to apply for leave is no defence.
Court orders
#- 1.A declaration that the Respondent's action to terminate the Claimant's employment was unfair
- 2.One month's salary in lieu of notice Kshs. 12,221.10
- 3.Compensation for earned but untaken leave days for 3 years KShs. 25,664
- 4.Compensation for unfair termination (12,221 x 7) KShs. 85,547.00
- 5.Underpaid salary for the period 1st August 2013 - 31st July 2016 KShs. 197,862.8
- 6.Interest on the sums awarded at Court rates from the date of Judgment until payment in full
- 7.The Respondent shall bear the costs of this suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalinda v Race Guards Limited (Employment and Labour Relations Cause 331 of 2017) [2024] KEELRC 2274 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2274/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.