Waweru Mbogo v G4s Security Services (K) Ltd [2017] KEELRC 1981 (KLR)
The bottom line
#A Kenyan court awarded a security guard nearly Kshs 280,000 after G4S failed to defend claims of unfair dismissal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was an employee of the Respondent
- 2.Whether the Claimant was given a fair and valid reason for termination of employment
- 3.Whether the Claimant was subjected to a fair disciplinary hearing before termination from employment
- 4.Whether the claimant was unlawfully, unprocedurally and unfairly terminated from employment
- 5.Whether the respondent proved the reason for termination of the claimant was for a fair reason
- 6.Whether the claimant is entitled to compensation for unlawful, unprocedural and unfair termination
- 7.Whether the claimant is entitled to an award of certificate of service
- 8.Who should pay costs and interest of the suit
Key legal issues
#Whether the summary dismissal was unfair
The summary dismissal was unfair; the claimant discharged his burden under section 47(5) and the respondent failed to discharge its burden under sections 43 and 45.
The claimant testified that the disciplinary hearing proceeded without his chosen colleague (shop steward), he was not given notice of dismissal, and his appeal went unanswered. His uncontroverted testimony satisfied the section 47(5) burden. Sections 43 and 45 required the employer to prove valid and fair reasons, but the respondent, having been duly served, entered no appearance and filed no response, thus failing to discharge that burden.
Remedies for unfair termination
One month's pay in lieu of notice, maximum 12 months' compensation given 23 years of service, and pro rata leave were awarded.
Relying on section 35(1)(c), the court awarded one month's salary in lieu of notice (Kshs 11,330/-). Considering the claimant's 23 years of service, the court awarded the maximum compensation based on the gross salary at termination (Kshs 21,812/- x 12 = Kshs 261,744/-). The pro rata leave claim of Kshs 5,948/- for 9 months worked in 2016 was allowed.
Legal principles established
#- An employee alleging unfair termination discharges his initial burden under section 47(5) of the Employment Act, and where the employer fails to file a response or attend hearing, the employer fails to discharge the burden under sections 43 and 45 to prove valid and fair reasons for dismissal.
Court orders
#- 1.Pay in lieu of notice of Kshs 11,330/-
- 2.Compensation of Kshs 261,744/- (maximum compensation)
- 3.Pro rata leave of Kshs 5,948/-
- 4.Total award of Kshs 279,022/- payable by the Respondent to the Claimant
- 5.Claimant to have costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance unfair termination cause)
Relief refused
#Overtime claim
Abandoned during the hearing
Certificate of service
Not specifically addressed in the final orders
Costs
Claimant to have costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court finds and holds that the summary dismissal of the Claimant was unfair and awards him and orders the Respondent to pay him
Claimant to have costs.
The Respondent, by failing to file a Response and/or attend the hearing has failed to discharge the burden imposed on employers and the Court has no hesitation in finding that there was unfair termination of employment.
The Court can therefore conclude therefore that he has discharged the burden of showing there was unfair termination of employment by dint of section 47(5) of the Employment Act, 2007.
Issues in the judgment
#The compensation figure of Kshs 261,744/- does not correspond to the stated gross salary of Kshs 21,812/- multiplied by 12 months (which would be Kshs 261,744/-); the figures are consistent, but the judgment leaves the prorated leave line blank in the tabulation of orders while awarding Kshs 5,948/- in the body.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru Mbogo v G4s Security Services (K) Ltd [2017] KEELRC 1981 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1981/eng@2017-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.