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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 2811 (KLR)

Kenya National Private Security Workers Union v Midal Group Kenya Limited (Employment and Labour Relations Cause E044 of 2023) [2024] KEELRC 2811 (KLR)

Employment and Labour Relations Court
14 November 2024
3,832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court awarded a security guard over Kshs. 551,000 because her employer dismissed her without giving her a chance to explain herself.

What this practically means

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Executive summary

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The claimant union, on behalf of its member Janet Adhiambo Otieno (the grievant), a security guard employed by the respondent from 30th November 2016 at a monthly salary of Kshs. 7,500, claimed that her services were unfairly terminated after she assisted a customer to offload shopping outside Woolmatt supermarket on 11th June 2022, and sought notice pay, leave, overtime, rest days, public holiday pay, house allowance, gratuity, underpayment, compensation and a certificate of service. The respondent admitted the employment but asserted that the grievant absconded duty from 12th June 2022 without communication and was summarily dismissed, denying the unfairness and the reliefs. The grievant testified as CW-1 and the respondent's Nakuru branch manager as RW-1. The court found that although the respondent admitted dismissing the grievant under section 44(4)(a) of the Employment Act for absconding duty, there was no evidence that it sought her out or issued a notice to show cause, and she was never given an opportunity to explain herself. Applying sections 41 and 45(2) of the Employment Act, the court held the dismissal unfair and unjustified. The court awarded one month's salary in lieu of notice (Kshs. 17,481.85), six months' salary as compensation for unfair termination (Kshs. 104,891), 11 days' unpaid June 2022 salary (Kshs. 6,410), underpayment of Kshs. 404,788.05 and untaken 2022 leave (Kshs. 17,481.85), totalling Kshs. 551,052.75 less statutory deductions, with costs and interest at court rates. Overtime was refused for want of proof, as no muster roll was produced, and gratuity was refused because the grievant was an NSSF member. Judgment was delivered virtually in Nakuru on 14th November 2024.

Key legal issues

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01

Whether the termination of the grievant was procedurally fair

Holding

The termination was procedurally unfair; the respondent admitted dismissing the grievant but produced no evidence of a notice to show cause or hearing before termination on account of absconding duty.

Reasoning

The respondent dismissed the grievant under section 44(4)(a) of the Employment Act for absconding duty, yet there was no evidence that it sought her out or issued a notice to show cause before dismissal. Section 41 requires the employer to explain the reasons for termination and allow the employee to be heard. Section 45(2) renders termination unfair where the employer fails to prove a valid and fair reason and a fair procedure. Since the grievant was never heard, the dismissal was unfair and unjustified.

p. 7
02

Entitlement to remedies following unfair termination

Holding

Notice pay, 6 months' compensation, unpaid June 2022 salary, underpayment of salary and 2022 leave were awarded; overtime and gratuity claims failed for want of proof.

Reasoning

Having found the dismissal unfair, the court exercised its discretion under the Employment Act to award one month's salary in lieu of notice per Legal Notice No. 125 of 2022, six months' salary as compensation for the dismissal without due process, 11 days' unpaid salary for June 2022, underpayment as tabulated by the claimant, and untaken leave for 2022. Overtime failed because the muster roll was not produced, and gratuity failed because the grievant was an NSSF member.

p. 7

Legal principles established

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  • An employer cannot unilaterally dismiss an employee without according the employee an opportunity to be heard
  • Termination without valid reason and fair procedure is unfair under section 45(2) of the Employment Act

Court orders

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  1. 1.Payment of 1-month salary in lieu of notice of Kshs. 17,481.85 as per Legal Notice No. 125 of 2022
  2. 2.Compensation for unfair termination equivalent to 6 months' salary = Kshs. 104,891
  3. 3.Payment of 11 days' salary for days worked and unpaid in June 2022 = Kshs. 6,410
  4. 4.Payment of underpayment of salary as tabulated in the memorandum of claim totalling Kshs. 404,788.05
  5. 5.Payment for leave not taken for year 2022 = Kshs. 17,481.85
  6. 6.Total award of Kshs. 551,052.75 less statutory deductions plus costs and interest at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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 Midal Group Kenya Limited (Employment and Labour Relations Cause E044 of 2023) [2024] KEELRC 2811 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2811/eng@2024-11-14

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