Kenya National Private Security Workers Union v BOB` Morgan Services Limited (Cause 1627 of 2017) [2022] KEELRC 4130 (KLR)
The bottom line
#A Kenyan court ruled Kenya Breweries unfairly sacked a security guard, awarding him six months' salary because it gave him only two hours to respond and no representation.
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 grievant's termination was fair and lawful
- 2.Is the grievant entitled to the reliefs sought?
Key legal issues
#Whether the respondent proved a valid and fair reason for termination (substantive fairness)
The respondent failed to prove that the grievant was absent without permission; the grievant proved on a balance of probability that he was authorised to be away for two days
The grievant produced a dispatch note dated June 30, 2016, signed by field officer Daniel Langat, clearing him for two days. The respondent challenged the note's authenticity only in cross-examination, not in its defence or RW1's testimony in chief, and produced no statement or affidavit from Langat disowning it. The disciplinary proceedings also recorded Langat admitting he filled the form. The court therefore found the dismissal reason unproved.
Whether the disciplinary process met the procedural fairness requirements of sections 41(1) and 45(2)(c) of the Employment Act
The termination was procedurally unfair: representation was not offered, and the grievant had only two hours to respond to the show cause letter
Although the grievant received and answered a show cause letter and attended a hearing, RW1 admitted he was unrepresented, and no invitation allowing a representative was exhibited, nor any waiver recorded. The two-hour deadline to respond was unreasonable where the employee's livelihood was at stake. Following Patrick Abuya v ICPAK, the process fell short of the statutory threshold.
Whether the grievant was entitled to the reliefs sought, namely 12 months' salary as compensatory damages
Compensatory damages of six months' gross salary (Kshs 105,000.00) awarded, being half of the 12 months claimed
Having found both substantive and procedural unfairness, the court exercised its discretion under section 49 of the Employment Act framework and awarded six months' gross salary rather than the maximum 12 months sought, entering judgment for Kshs 105,000.00 with interest and costs.
Legal principles established
#- An employer must prove both substantive and procedural fairness to sustain a termination; failure to prove the reason renders the termination unfair
- An employer bears the burden of proving procedural fairness, including that an employee was offered and waived or refused representation at a disciplinary hearing
- A two-hour period to respond to a show cause letter is unreasonable and offends procedural fairness
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.The grievant awarded compensatory damages of Kshs 105,000.00, equivalent to six months of his gross salary
- 3.Interest on the award at court rates from the date of judgment until payment in full
- 4.The respondent to bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance jurisdiction under the Employment and Labour Relations Court Act over a claim for compensatory damages for unfair termination under the Employment Act, 2007
Relief refused
#Compensatory damages of Kshs 210,000.00 (12 months' gross salary) as sought
The court, in its discretion, awarded only six months' gross salary instead of the 12 months claimed
Costs
The respondent shall bear the costs of the suit.
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.
In order to prove that an employee's termination was fair and lawful, an employer has to satisfy two limbs, that is substantive and procedural fairness.
I am of the view that the subtle reason for the grievant's termination was his alleged incitement of stafi at Electricity House. That was the real trigger. It was the reason behind the reason.
By all means, the period of two hours was quite unreasonable, noting that the grievant's job was on the line. In actual sense, the respondent did not stand to loose anything by allowing the grievant a reasonable time to answer to the show cause letter.
To this end, Judgment is entered in favour of the claimant against the respondent and the grievant is awarded compensatory damages in the sum of Kshs 105,000.00 which sum is equivalent to six (6) months of his gross salary. Interest shall apply on the award at court rates from the date of Judgement until payment in full.
Issues in the judgment
#Internal contradiction in dates: the claim avers employment commenced in November 2017, yet the termination is pleaded and found to have occurred in July 2016
The judgment records the grievant's testimony of meetings on '7th August(sic) 2016' and '8th August (sic) 2016', whereas the termination letter and defence place the disciplinary hearing on July 6, 2016 and termination on July 8, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v BOB` Morgan Services Limited (Cause 1627 of 2017) [2022] KEELRC 4130 (KLR)", Case Analysis (2022). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4130/eng@2022-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.