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ELRCPartially AllowedEmployment Cause (Memorandum of Claim dated 20th December 2017)

Wandor v Riley Falcon Security Services Ltd (Cause 497 of 2017) [2024] KEELRC 1670 (KLR)

Employment and Labour Relations Court
4 April 2024
2,313 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent security firm as a day watchman from 7th January 2012, claimed unfair termination after he was directed to transfer to Nyahururu/Ol Kalou and, having sought time to relocate his family, received a letter of termination dated 2nd July 2015. He sought notice pay, 11 days' salary, leave pay for three and a half years, underpayment, compensation under section 49(1)(c) of the Employment Act, uniform refund, certificate of service and costs. The Respondent asserted the Claimant served on successive fixed term contracts that lapsed on 25th May 2015, that he declined a fresh contract, and that all dues were paid. The Respondent's submissions were not on record. The court found the contract-expiry defence untrue, since a termination letter existed and no contracts were exhibited. Applying sections 41 and 45(2) of the Employment Act, the court held the termination was procedurally unfair as no hearing or disciplinary process occurred and no valid reason was established. Judgment was entered for the Claimant: one month's notice pay (Kshs 11,623.16), one year's leave pay for 2014/2015 (Kshs 11,512), underpayment of wages (Kshs 155,946.80), 11 days' unpaid salary (Kshs 5,108.80) and 10 months' salary as compensation (Kshs 116,231), totalling Kshs 300,422.16 less statutory deductions, plus a certificate of service, costs and interest. The claim was therefore partially allowed - leave awarded for one year only, and the uniform refund was not awarded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant's employment was terminated or lapsed by expiry of a fixed term contract
  2. 2.Whether the termination was unfair and unlawful for want of valid reason and fair procedure
  3. 3.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the contract lapsed or the Claimant was terminated

Holding

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

Reasoning

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.

p. 4
02

Whether the termination was procedurally fair

Holding

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

Reasoning

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.

p. 5
03

What remedies flow from the unfair termination

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.One-month salary in lieu of notice of Kshs 11,623.16
  2. 2.One year leave not paid for 2014/2015 of Kshs 11,512
  3. 3.Underpayment of wages as pleaded of Kshs 155,946.80
  4. 4.11 days worked in May 2015 not paid of Kshs 5,108.80
  5. 5.10 months' salary as compensation for unfair and unlawful termination of Kshs 116,231, subject to statutory deductions
  6. 6.The Claimant be issued with a Certificate of Service
  7. 7.The Respondents to pay costs of the suit plus interest at court rates from the date of judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007

Relief refused

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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

p. 5

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

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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.
p. 5Unfair termination
The argument that the contract expired is therefore not true. No contract is also exhibited by the Respondents to prove that fact.
p. 4Rejection of contract expiry defence
Without a hearing, the validity of reason for the termination were also never established and without any formal disciplinary hearing.
p. 5Procedural fairness
Total Awarded = 300,422.16/= Less statutory deductions
p. 5Final award
The Respondents will pay costs of this suit plus interest at court rates with efiect from the date of this judgment.
p. 5Costs

Issues in the judgment

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minor

Judgment cites a pending related suit (Nakuru ELRC Cause Number 402 of 2015) but does not resolve or explain its effect on this claim

minor

Dates of employment termination are inconsistently stated (5th June 2016 on cross-examination versus 6th June 2015 in the claim and finding)

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, "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.