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IndustrialPartially Allowed

Orinyo v Total Security Surveillance Limited (Cause 83 of 2013) [2014] KEIC 87 (KLR)

Industrial Court (Employment and Labour Relations Court)
10 December 2014
2,144 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 Kenyan court ruled a security guard's dismissal unfair because the employer couldn't prove both a valid reason and a fair disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, employed as a Night Guard from 1 October 2010, was summarily dismissed on 10/11 January 2012 following a theft of property valued at Kshs.1.6 million at Mitchell Cotts where he was stationed. He sued for accrued benefits totalling Kshs.414,604 and compensation for unfair termination, contending the dismissal breached Sections 35, 41 and 51 of the Employment Act and Article 47(1) of the Constitution because no due process was followed. The Respondent admitted the dismissal but justified it under Section 44 for suspected criminal conduct, alleging the Claimant was accorded a fair hearing. The court found the Respondent's proof wanting: the confession letter of a fellow guard was only a photocopy whose author never testified, and the HR Manager's account of the disciplinary hearing was hearsay as she was not present. The employer therefore failed to discharge its burden under Sections 43 and 45 to prove both a valid reason and fair procedure, and the dismissal was held unfair. Adopting Kshs.10,000 as the Claimant's rightful salary from contracts filed by the defence, the court awarded one month's salary in lieu of notice (Kshs.10,000), underpayment of Kshs.16,000 for May to December 2011, leave pay of Kshs.8,750, uniform deductions of Kshs.3,950, salary for 10 days worked in January 2012 (Kshs.4,060), and six months' salary (Kshs.60,000) as compensation, reduced for mitigation. Claims for public holidays, overtime and earlier underpayment failed for lack of evidence. Judgment was entered for the Claimant in the sum of Kshs.102,760 plus costs and interest.

Questions the Court framed

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

  1. 1.Whether the summary dismissal of the Claimant was unfair
  2. 2.Whether the reliefs sought should issue

Key legal issues

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01

Whether the summary dismissal was substantively and procedurally unfair

Holding

The dismissal was unfair within Section 45 of the Employment Act; the Respondent failed to prove both a valid reason and fair procedure.

Reasoning

The Respondent relied on a photocopy of a confession letter whose author did not testify, and on hearsay evidence of a hearing given by an HR Manager who was not present. The police had exonerated the Claimant. The court held the employer bore the burden under Sections 43, 44 and 45 of the Employment Act and failed to discharge it as to both substantive and procedural fairness.

p. 4
02

What salary should form the basis of the awards

Holding

The court applied Kshs.10,000 as the Claimant's rightful salary as contained in contracts filed by the defence.

Reasoning

Although the wage order set a minimum of Kshs.8,463 for night guards, the court adopted Kshs.10,000 found in the contracts of employment filed in court by the defence, noting the same salary applied to other guards including Mr. William Wesa. This figure informed the notice pay, underpayment award and compensation.

p. 4
03

Entitlement to compensation for unfair termination

Holding

Six months' salary (Kshs.60,000) awarded because the Claimant mitigated his loss by obtaining alternative employment within 12 months.

Reasoning

Under Section 49 of the Employment Act an unfairly dismissed employee is entitled to notice pay, accrued dues and compensation. The court awarded six months' salary, taking into account that the Claimant admitted securing other employment before the expiry of 12 months after dismissal.

p. 4

Legal principles established

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  • The burden of proving both a valid and fair reason for termination and procedural fairness lies on the employer
  • Fair procedure under Section 41 requires an oral hearing in a language the employee understands in the presence of a fellow employee of his choice
  • An photocopy of an unproved letter whose author does not testify cannot be relied on to the prejudice of a claimant
  • Hearsay evidence of a disciplinary hearing by a witness who was not present cannot establish that a fair hearing was accorded

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs.102,760
  2. 2.Claimant awarded Kshs.10,000 being one month salary in lieu of notice
  3. 3.Claimant awarded Kshs.16,000 for underpayment between May 2011 and December 2011
  4. 4.Claimant awarded Kshs.8,750 for 26 accrued leave days
  5. 5.Claimant awarded Kshs.3,950 refund of uniform deductions
  6. 6.Claimant awarded Kshs.4,060 salary for 10 days worked in January 2012
  7. 7.Claimant awarded Kshs.60,000 being six months' salary as compensation for unfair termination
  8. 8.Costs and interest on the decretal sum awarded to the Claimant

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 over employment disputes; claim founded on Sections 35, 41, 45, 49 and 51 of the Employment Act and Article 47(1) of the Constitution

Relief refused

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Underpayment claim between 2010 and April 2011

dismissed for lack of evidence

p. 4

Claim for public holidays worked

no particulars or evidence adduced

p. 4

Claim for overtime

the salary was consolidated pay including standard overtime

p. 4

Costs

Costs of the suit awarded to the Claimant, plus interest on the judgment sum of Kshs.102,760.

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.

For the reasons above judgment is entered for the Claimant in the sum of Kshs.102760 plus costs and interest.
p. 4Disposition
Consequently the court believe the evidence of CW1 and finds that the dismissal of the Claimant from employment was unfair within Section 45 of the Act.
p. 4Unfair termination
In the present case the Respondent failed to discharge his burden in proving both substantive and procedural fairness within the meaning of Section 45 Supra.
p. 4Burden of proof on employer
Under Section 49 of the Employment Act, an unfairly dismissed employee is entitled to salary in lieu of notice, accrued employment dues plus compensation for unfair termination.
p. 4Reliefs

Issues in the judgment

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minor

The judgment contains conflicting statements on the date of dismissal, at one point 10.1.2012 and at another 11.1.2012, and on the Respondent's position on minimum wage ('the minimum statutory salary was Kshs.7586 which was way below the Kshs.8000' versus the later admission of underpayment against Kshs.8463).

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, "Orinyo v Total Security Surveillance Limited (Cause 83 of 2013) [2014] KEIC 87 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/87/eng@2014-12-10

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