Wandor v Riley Falcon Security Services Ltd (Cause 497 of 2017) [2024] KEELRC 1670 (KLR)
The bottom line
#A Nakuru court ruled a security guard was unfairly sacked without a hearing, awarding him over Kshs 300,000 because the employer could not prove its contract-expiry defence.
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 Claimant's employment was terminated or lapsed by expiry of a fixed term contract
- 2.Whether the termination was unfair and unlawful for want of valid reason and fair procedure
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the contract lapsed or the Claimant was terminated
The Claimant was terminated; the claim that the contract expired on 25th May 2015 was untrue as evidenced by the letter of termination dated 2nd July 2015
The court examined the documents and found a letter of termination indicating the Claimant's services were ended for refusing to report to a new assignment. The Respondent produced no contract documents to substantiate the assertion that the engagement lapsed by expiry. Consequently, the expiry defence failed and the termination had to satisfy statutory fairness requirements.
Whether the termination was procedurally fair
The termination was procedurally unfair as the Respondent did not follow section 41 of the Employment Act - no explanation of reasons, no hearing, no disciplinary process
Section 41 requires an employer to explain the reasons for termination and allow the employee a representative during the explanation. RW-1 conceded no disciplinary hearing was conducted. Without a hearing, the validity of the reasons could not be established, and under section 45(2) the employer bears the burden of proving valid reason, fair reason and fair procedure, none of which was discharged.
What remedies flow from the unfair termination
Notice pay, one year's leave pay, underpayment, 11 days' unpaid salary and 10 months' salary as compensation under section 49(1)(c), plus certificate of service and costs
Having found the termination unfair, the court exercised its discretion under section 49 of the Employment Act to award the reliefs proved, granting maximum-range compensation of 10 months' salary given the Claimant was bundled out without any hearing, and awarded the pleaded pecuniary heads substantiated by evidence.
Legal principles established
#- Termination of employment must be supported by a valid reason and fair procedure, including a hearing, before it is fair under sections 41 and 45 of the Employment Act
- A party alleging that a contract lapsed must exhibit the contract to prove that fact
Court orders
#- 1.One-month salary in lieu of notice of Kshs 11,623.16
- 2.One year leave not paid for 2014/2015 of Kshs 11,512
- 3.Underpayment of wages as pleaded of Kshs 155,946.80
- 4.11 days worked in May 2015 not paid of Kshs 5,108.80
- 5.10 months' salary as compensation for unfair and unlawful termination of Kshs 116,231, subject to statutory deductions
- 6.The Claimant be issued with a Certificate of Service
- 7.The Respondents to pay costs of the suit plus interest at court rates from the date of judgment
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 Act 2007
Relief refused
#Annual leave for the full 3 years and 6 months pleaded
Court awarded leave pay for only one year (2014/2015) rather than the entire period claimed
Uniform refund of Kshs 4,200
Not included in the final award despite being pleaded
Costs
The Respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
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.
It is my finding that the termination of the Claimant was unfair and unjustified.
The argument that the contract expired is therefore not true. No contract is also exhibited by the Respondents to prove that fact.
Without a hearing, the validity of reason for the termination were also never established and without any formal disciplinary hearing.
Total Awarded = 300,422.16/= Less statutory deductions
The Respondents will pay costs of this suit plus interest at court rates with efiect from the date of this judgment.
Issues in the judgment
#Judgment cites a pending related suit (Nakuru ELRC Cause Number 402 of 2015) but does not resolve or explain its effect on this claim
Dates of employment termination are inconsistently stated (5th June 2016 on cross-examination versus 6th June 2015 in the claim and finding)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandor v Riley Falcon Security Services Ltd (Cause 497 of 2017) [2024] KEELRC 1670 (KLR)", Case Analysis (2024). Employment Cause (Memorandum of Claim dated 20th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1670/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.