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ELRCPartially AllowedMemorandum of Claim dated March 23, 2021 (Nyeri Employment and Labour Relations Court)· [2022] KEELRC 4097 (KLR)

Oaga v G4S Kenya Limited (Employment and Labour Relations Claim E015 of 2021) [2022] KEELRC 4097 (KLR)

Employment and Labour Relations Court
28 September 2022
DMD.K. Njagi Marete
3,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled G4S unfairly dismissed a guard with 19 years of clean service for one incident of sleeping on duty, awarding him over Kshs 556,000.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent since January 2, 1999, was suspended on October 3, 2018 and summarily dismissed on October 15, 2018 on the allegation that he was found sleeping while on night duty at the respondent's client's premises (BATUK, Nyati Barracks, Nanyuki). He claimed the dismissal was unlawful, wrongful and unfair, alleging procedural and substantive breaches of sections 41, 43, 45 and 47 of the Employment Act, 2007, and sought a declaration, twelve months' salary as compensation, gratuity for 19 years, days worked, overtime, allowances and accrued leave, plus costs. The respondent maintained that sleeping on duty constituted gross misconduct under clause 8.7 of its disciplinary code, that the claimant was a repeat offender with prior warnings, and that he admitted the misconduct at a disciplinary hearing attended with a shop steward; it also contended that terminal dues were applied to offset his Sacco loan. The court framed three issues: fairness of the termination, entitlement to relief, and costs. It found the claimant's case more persuasive, emphasising his 19 years of incident-free service and holding that the disciplinary code had to be applied with restraint and reasonableness, not to produce injustice. The court found the summary dismissal unwarranted and unfair, allowed the claim, and awarded one month's salary in lieu of notice, ten months' salary as compensation, service gratuity for 19 years, and 15 days' pay, totalling Kshs 556,796.50, with costs to the respondent.

Key legal issues

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01

Whether the summary dismissal of the claimant for being found asleep on duty was fair, wrongful and unlawful

Holding

The dismissal was unfair; the action of summary dismissal was not warranted given the claimant's 19 years of incident-free service and the single, isolated nature of the incident.

Reasoning

The court weighed the claimant's 19 continuous and blemish-free years of service against a single isolated incident of being found asleep. It held that disciplinary codes are meant to guide the process and maintain workplace order, not to eke out injustice on workers, and must be applied with restraint, decorum and reasonableness in view of the prevailing circumstances. A one-off unfortunate situation did not warrant the severe sanction of summary dismissal under section 43 of the Employment Act, 2007.

p. 7
02

Whether the claimant is entitled to the relief sought

Holding

Having succeeded on the claim of unlawful termination, the claimant became entitled to the reliefs sought, which the court awarded in modified form.

Reasoning

The court found that the claimant, having won on the unlawful termination claim, became entitled to reliefs: one month's salary in lieu of notice, ten months' salary as compensation, service gratuity for 19 years, and pay for 15 days worked, totalling Kshs 556,796.50, plus costs.

p. 8
03

Who bears the costs of the cause

Holding

The respondent to meet the costs of the claim.

Reasoning

The claimant succeeded, and the court ordered the respondent to pay the costs of the claim.

p. 8

Legal principles established

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  • An employer's disciplinary code must be applied with restraint and reasonableness and not to produce injustice or absurdity.
  • Summary dismissal for a single isolated incident after long, incident-free service is not warranted.

Court orders

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  1. 1.One (1) month salary in lieu of notice of Kshs 24,299.00
  2. 2.Ten (10) months salary as compensation for unlawful termination of employment of Kshs 242,990.00
  3. 3.Service gratuity for 19 years of Kshs 277,008.00
  4. 4.15 days worked up to 15th October, 2018 of Kshs 12,499.50
  5. 5.Total award of Kshs 556,796.50
  6. 6.The costs of the claim shall be met by the respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007; claim following conciliation under section 69(b) of the Labour Relations Act)

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, "Oaga v G4S Kenya Limited (Employment and Labour Relations Claim E015 of 2021) [2022] KEELRC 4097 (KLR)", Case Analysis (2022). Memorandum of Claim dated March 23, 2021 (Nyeri Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4097/eng@2022-09-28

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