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ELRCPartially AllowedCause Number 578 of 2010· [2017] KEELRC 2005 (KLR)

Silas Emojong Ongwali v Securex Agencies (K) Limited [2017] KEELRC 2005 (KLR)

Employment and Labour Relations Court of Kenya
1 December 2017
ANAbuodha J. N.
1,289 words in judgment
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The bottom line

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A Kenyan security company failed to prove an employee was drunk on duty, so his dismissal was ruled unfair and he won compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a security guard and dog handler from 27th February 2006, alleged that his services were terminated on 28th January 2010 without just cause, and that he was dismissed after threatening to sue the respondent for workplace injuries. The respondent denied the claim, asserting the claimant was dismissed for gross misconduct, namely reporting to work intoxicated on 17th January 2010, after which he disappeared from work. The claimant testified that he injured himself while alighting from the respondent's dog van and sought treatment on his own after waiting too long for the respondent to take him to hospital. The respondent's witnesses confirmed the fall and an altercation with the van driver but insisted the claimant was drunk. The court found no warning or notice to show cause was served and that the respondent failed to take the claimant to hospital to ascertain injury. Holding that the burden of proving the reasons for dismissal lies on the employer, the court found the respondent had failed to prove the validity of the reason for dismissal, rendering the termination unfair. Judgment was entered for the claimant for one month's salary in lieu of notice (Kshs.6,829/=), unpaid January salary (Kshs.6,829/=), seven months' salary as compensation for unfair dismissal (Kshs.47,873/=), and costs, less statutory deductions and monies already received. Other heads of claim were disallowed. Judgment dated and delivered at Nairobi on 1st December 2017 by Abuodha J. N.

Key legal issues

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01

Whether the respondent proved the reason for dismissal

Holding

The dismissal was unfair because the respondent failed to prove the claimant's drunkenness, having neglected to subject him to a medical test or serve a notice to show cause

Reasoning

The claimant's account of a workplace injury while alighting from the dog van was uncontroverted. The respondent relied on reports that the claimant was drunk but did not serve a warning or notice to show cause, nor take him to hospital to ascertain injury. Since drunkenness was the sole ground, the respondent was bound to rule out the injury claim via medical examination. Failure to discharge the employer's burden of proof made the dismissal unfair.

p. 3
02

Remedies for unfair dismissal

Holding

The court awarded one month's salary in lieu of notice, unpaid January salary, seven months' salary as compensation, and costs

Reasoning

Having found the dismissal unfair, the court entered judgment for the employee with quantified awards based on the monthly salary of Kshs.6,829/=, subject to statutory deductions and amounts already received, plus costs. Other heads of claim were disallowed as contested in the respondent's pleadings.

p. 3

Legal principles established

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  • The burden of proving the reasons for dismissal rests on the employer, and failure to do so renders the dismissal unfair

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs.6,829/=
  2. 2.Unpaid salary for January of Kshs.6,829/=
  3. 3.Seven months' salary as compensation for unfair dismissal of Kshs.47,873/=
  4. 4.Costs of the suit to the claimant
  5. 5.Awards under items (a), (b) and (c) to be less statutory deductions and money already paid and received by the claimant
  6. 6.Other heads of the claim disallowed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims

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, "Silas Emojong Ongwali v Securex Agencies (K) Limited [2017] KEELRC 2005 (KLR)", Case Analysis (2017). Cause Number 578 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/2005/eng@2017-12-01

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