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ELRCPartially AllowedCause No. 1292 of 2016· [2021] KEELRC 11 (KLR)

Walter Barasa Ombikhwa v Lavington Security Limited [2021] KEELRC 11 (KLR)

Employment and Labour Relations Court of Kenya
9 December 2021
MMM. Mbaru
1,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard was unfairly terminated because his employer kept no work records and could not justify sending him away.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a security guard from 3rd November 2008 at a monthly wage of Ksh.9,900, alleged that on 5th July 2015 he was verbally directed to go home and await redeployment which never came, amounting to constructive dismissal and wrongful termination. He claimed notice pay, untaken leave, house allowance, public holiday pay, overtime, uniform fee refunds and annual duty deductions, plus 12 months' salary as damages. The respondent denied the claim, contending the claimant absconded duty from 30th June 2015 and that his wage was consolidated with house allowance; it called a supervisor who testified the claimant declined to wait for a reliever and found new employment. The respondent filed no work records. The court framed three issues: constructive dismissal, wrongful termination, and remedies. It held constructive dismissal fails absent a resignation, which was missing here since the employer sent the claimant away verbally. On termination, applying sections 43(1), 47(5) and 10(6)-(7) of the Employment Act, 2007, the employer bore the burden of justifying termination and producing work records; having filed none and issued no notice over alleged desertion, the respondent failed, and wrongful and unfair termination contrary to sections 35, 43 and 45 was found. Judgment was entered for the claimant for compensation of 6 months (Ksh.59,400), notice pay (Ksh.9,900), 18 months' leave pay (Ksh.14,850) and house allowance (Ksh.54,460); uniform and duty deductions to be processed upon clearance. Public holiday and overtime claims were rejected as unparticularised and exaggerated. The claim thus partially succeeded, with costs to the claimant.

Key legal issues

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01

Constructive dismissal

Holding

The constructive dismissal claim failed because there was no resignation by the claimant; the removal from work was effected by the employer.

Reasoning

Constructive dismissal requires the employee, facing intolerable working conditions caused by the employer, to initiate termination by resigning. Here the claimant was sent away by verbal communication from the respondent; there was no resignation, so a key element of constructive dismissal was missing. The claim therefore had to be assessed as ordinary (unfair/wrongful) termination by the employer rather than constructive dismissal.

p. 2
02

Wrongful and unfair termination

Holding

The court found the respondent wrongfully and unfairly terminated the claimant's employment, entitling him to notice pay and compensation.

Reasoning

The respondent alleged desertion but issued no notice over the alleged absconding and filed no work records. Where reduced work forced placement directions, no notice under section 40 of the Employment Act was issued. Under sections 43(1) and 47(5) the burden of justifying termination rests on the employer, and under section 10(6) and (7) it must produce work records. Having produced none, the respondent failed to justify the termination.

p. 2
03

Remedies and quantum

Holding

Compensation of 6 months' gross pay (Ksh.59,400), one month's notice pay (Ksh.9,900), 18 months' leave pay (Ksh.14,850) and house allowance of Ksh.54,460 were awarded; other heads were rejected or made subject to clearance.

Reasoning

The claimant served about 7 years, justifying 6 months' compensation under section 49. Leave records were absent, so only the statutory 18 months of untaken leave was payable under section 28. The alleged consolidation of wage and house allowance was not supported by any contract, and the security guard's wage was regulated by Wage Orders, revealing underpayment; the claimed house allowance was found reasonable. Public holiday and overtime claims were rejected as unparticularised and exaggerated.

p. 2

Legal principles established

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  • Constructive dismissal requires the employee to initiate termination of employment in response to intolerable conditions imposed by the employer; without a resignation the claim fails.
  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer; where the employer files no work records, its defence fails.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent
  2. 2.Compensation of Ksh.59,400
  3. 3.Notice pay of Ksh.9,900
  4. 4.Leave pay of Ksh.14,850
  5. 5.House allowance of Ksh.54,460
  6. 6.The claimant to undertake clearance with the respondent upon which his deductions (uniform refunds and annual duty deductions) shall be processed
  7. 7.The claimant is awarded costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims under Article 162(2) of the Constitution and the Employment Act, 2007

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, "Walter Barasa Ombikhwa v Lavington Security Limited [2021] KEELRC 11 (KLR)", Case Analysis (2021). Cause No. 1292 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/11/eng@2021-12-09

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