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ELRCDismissedELRC Appeal arising from CMELRC Case No. 3 of 2019

G4S Kenya Limited v Arasa (Employment and Labour Relations Appeal E019 of 2022) [2024] KEELRC 2814 (KLR)

Employment and Labour Relations Court
14 November 2024
4,338 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed G4S must pay an unfairly dismissed employee because it ignored its own disciplinary manual.

What this practically means

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Executive summary

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G4S Kenya Limited appealed against the judgment and decree of J. B Kalo (CM) in CMELRC Case No. 3 of 2019, Nakuru, delivered on 29th July 2022, in which Stanley Michira Arasa's claim for unfair termination succeeded. The trial court had found the employer violated its own Disciplinary and Grievance Procedure (notably by failing to communicate reasons for the appeal outcome within 2 days), that insufficient evidence proved late banking of client cash, and awarded six months' salary compensation, one month's salary in lieu of notice, accumulated leave for nine years, and 15 days' salary for May 2018. The appellant raised five grounds attacking the findings on procedure, validity of reasons, compensation quantum, the leave award, and the award for days worked. On appeal, and as the first appellate court obliged to re-evaluate the evidence afresh, Wasilwa J reviewed the record and found the employer breached its own disciplinary manual: no witnesses were called at the hearing, documents were not supplied, and the appeal outcome was communicated outside the policy timelines. The Court held that failure to adhere to the manual rendered the disciplinary hearing flawed and that section 45(2) of the Employment Act was satisfied in the trial magistrate's unfairness finding. The Court also upheld the award of leave, noting the respondent never proceeded on leave. The Court found no reason to disturb the trial court's findings and dismissed the appeal, ordering the appellant to pay costs of the appeal and the lower Court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned magistrate erred in holding that the disciplinary and grievance procedure was violated and the disciplinary process illegal, null and void
  2. 2.Whether there was sufficient evidence to prove that the respondent received cash from clients which he did not bank on time
  3. 3.Whether the respondent was unfairly dismissed
  4. 4.Whether the award of six months' salary as compensation for unfair termination was justified
  5. 5.Whether the award of leave not taken for nine years was justified
  6. 6.Whether the award of salary for 15 days worked in May 2018 was justified

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

The employer breached its own Disciplinary and Grievance policy: no witnesses were called at the hearing, documents were not supplied, and the appeal outcome was not communicated within 2 working days with written reasons; the dismissal was therefore procedurally unfair

Reasoning

The Court reviewed the claimant's evidence showing no witnesses testified at the disciplinary hearing, the investigation report was not supplied at commencement, and the appeal decision was communicated outside the 2-day policy window. Section 45(2) of the Employment Act requires a valid and fair reason plus fair procedure. Failure to follow the employer's own manual rendered the hearing flawed, justifying the trial magistrate's finding of unfair dismissal.

p. 8
02

Payment in lieu of untaken leave over nine years

Holding

The trial magistrate properly found the respondent entitled to payment in lieu of leave; the respondent did not proceed on leave despite records being channeled online

Reasoning

The respondent indicated leave was channeled through the online platform but he never proceeded on leave. The appellant, as custodian of employment records, produced no leave application forms or proof of payment for accrued leave. The trial magistrate's finding that the respondent was entitled to payment in lieu of leave was therefore proper and not disturbed.

p. 8
03

Validity of the reasons for termination

Holding

The trial magistrate's findings on the validity of the reasons stood; the Court found no reason to disturb them

Reasoning

The Court re-evaluated the evidence, noting the claimant denied receiving CIT payments and that key witnesses were not called at the disciplinary hearing. Having considered the evidence, the Court was convinced the trial magistrate applied his mind correctly and declined to disturb the findings, including on the fairness of the dismissal and compensation.

p. 8

Legal principles established

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  • Failure by an employer to adhere to its own disciplinary process as provided in its manual renders the disciplinary hearing flawed and the termination procedurally unfair under section 45(2) of the Employment Act
  • This being a first appeal, the Court has an obligation to re-evaluate the evidence afresh

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay costs of the appeal and of the lower Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate Court, Nakuru (CMELRC)
CMELRC Case No. 3 of 2019
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court (appellate re-evaluation of facts and law)

Relief refused

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Allowing the appeal and setting aside the judgment of 29th July 2022 and substituting it with an order dismissing the suit

The Court found the trial magistrate applied his mind correctly and made a proper finding; no reason to disturb the findings

p. 8

Costs

The appellant to pay costs of this appeal and of the lower Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This being the 1st appeal to this Court, this Court has an obligation to re-evaluate the evidence afresh which this Court has done in this judgment.
p. 7Duty of first appellate court
In the Court's view, failure to adhere to disciplinary process as provided in the manual would render the disciplinary hearing fiawed and therefore it was proper for the trial magistrate to make a finding as this.
p. 8Procedural fairness and employer's own disciplinary policy
A termination of employment by an employer is unfair if the employer fails to prove― a. that the reason for the termination is valid;
p. 8Section 45(2) Employment Act - unfair termination
I find no merit in his appeal and I dismiss it accordingly.
p. 8Disposition
The appellant to pay costs of this appeal and of the lower Court.
p. 8Final order on costs

Issues in the judgment

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minor

The judgment inconsistently refers to the trial party names, at one point stating 'the respondent/ appellant herein' in describing the lower Court parties

minor

The judgment refers to the claimant's admission that the fraud was done by Sigilai described as working under him, while the defence pleading named 'Victor Singilai' as branch administrator; the names/spellings differ

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, "G4S Kenya Limited v Arasa (Employment and Labour Relations Appeal E019 of 2022) [2024] KEELRC 2814 (KLR)", Case Analysis (2024). ELRC Appeal arising from CMELRC Case No. 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2814/eng@2024-11-14

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