Maurice Otieno Ngicho & 2 others v Brinks Security Services Limited [2021] KEELRC 1456 (KLR)
The bottom line
#A Kenyan court upheld the summary dismissal of three workers who refused overtime, but still awarded them accrued leave pay.
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 claimants refused and failed to attend overtime work as directed by the respondent
- 2.Whether the claimants failed to show cause why disciplinary action should be taken against them
- 3.Whether the summary dismissal of the claimants was justified, and whether notice pay, leave pay and compensation are due
- 4.Whether the respondent's counter-claim for notice pay is merited
Key legal issues
#Whether the summary dismissal of the claimants was lawful and fair
The dismissal was justified: the claimants refused overtime as directed, failed to respond to the show cause notice, and abandoned work during the notice period
The court found the claimants defied a lawful instruction to work overtime on 30 June 2014, declined to reply to a notice to show cause, and after being issued with seven days' notice of termination on 1 July 2014 failed to report to work or serve the notice period. Sections 44(3) and 44(a), (c) and (e) of the Employment Act permit summary dismissal for such conduct, subject to notice to defend themselves, which the court held was given, and section 41(2) due process was followed.
Whether the claimants are entitled to notice pay
Notice pay is not due where summary dismissal is justified
Since the court found valid reasons and due process for summary dismissal, the claim for one month's notice pay of Ksh.16,000 failed. Conversely, on the counter-claim, because the claimants did not attend work during the seven-day notice period, each was liable to pay the respondent notice pay of Ksh.3,730 computed on the monthly wage of Ksh.16,000.
Whether the claimants are entitled to leave pay
Leave pay is due notwithstanding the manner of termination; pro-rata at 1.75 days per month for those short of a year, and full leave for Josphat who served a full year
Section 28 of the Employment Act secures the right to annual leave irrespective of the reason for termination. Maurice and Hyrine worked from 23 July 2013 to 8 July 2014, a few days short of a year, earning leave for 11 months at 1.75 days per month on a wage of Ksh.16,000, amounting to Ksh.10,267 each. Josphat worked a full year and is entitled to Ksh.16,000.
Legal principles established
#- An employer may summarily dismiss for breach of contract, absenteeism, neglect of duty or failure to take lawful directions, subject to affording the employee notice, however short, to defend themselves
- The right to annual leave under section 28 of the Employment Act accrues notwithstanding the reasons leading to termination
- An employee who fails to serve the notice period after issuing/upon notice of termination is liable in notice pay to the employer
Court orders
#- 1.Payment of annual leave to Maurice Otieno Ngicho of Ksh.10,267
- 2.Payment of annual leave to Josphat Sakwa Okutoto of Ksh.16,000
- 3.Payment of annual leave to Hyrine Mikae Bonareri of Ksh.10,267
- 4.Each claimant to pay the respondent Ksh.3,730 in notice pay on the counter-claim
- 5.Costs of the counter-claim awarded to the respondent
- 6.The claimants to be paid the dues owing less the award in the counter-claim
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 and Labour Relations Court Act and the Employment Act, 2007
- Consolidated with
- Cause No. 1381 of 2014, Cause No. 1383 of 2014
Relief refused
#One month notice pay (Ksh.16,000) for each claimant
Summary dismissal was justified, so notice pay is not due
Compensation for 12 months (Ksh.192,000) for unfair termination
There was lawful cause and valid reasons for summary dismissal and due process was followed
Costs of the claim
The claims were found without basis and costs awarded to the respondent
Costs
Costs of the counter-claim awarded to the respondent; the claims were found without basis and the claimants should pay costs to the respondent; the claimants shall be paid dues owing less the award in the counter-claim.
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.
Accordingly, the claims made are found without merit save payment of annual leave in the following terms;
The counter-claim is found with merit and each claimant shall pay Ksh.3, 730 to the respondent in notice pay;
The claims shall be paid the dues owing less the award in the counter-claim.
There was a lawful cause and valid reasons for summary dismissal. The due process of section 41(2) of the Employment Act, 2007 was followed.
The claims for leave pay, section 28 of the Employment Act, 2007 has secured the right to enjoy annual leave the reasons leading to termination of employment notwithstanding.
Issues in the judgment
#The judge's name appears with an unclear character in the signature block
The claimant's name appears as 'Joseph Sakwa Okutoto' in the cause heading but 'Josphat Sakwa Ukutoto' in the testimony and 'Josphat Sakwa Okutoto' in the orders
Costs of the claim appear awarded to the respondent in the determination yet no express general costs order appears in the final orders, which only award costs of the counter-claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Otieno Ngicho & 2 others v Brinks Security Services Limited [2021] KEELRC 1456 (KLR)", Case Analysis (2021). Cause No. 1382 of 2014 (consolidated with Causes No. 1381 and 1383 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1456/eng@2021-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.