[2023] KEELRC 2894 (KLR)

Bett v Lavington Security Limited (Cause 398 of 2018) [2023] KEELRC 2894 (KLR) (9 November 2023) (Judgment) (with dissent)

Neutral citation: [2023] KEELRC 2894 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 398 of 2018

Nzioki wa Makau, J

November 9, 2023

Between

Mike Kiplangat Bett

Claimant

and

Lavington Security Limited

Respondent

Judgment

1. The claimant instituted this claim against the Respondent praying for judgment against the Respondent for the sum of Kshs. 395,500/- being salary arrears, notice pay, unpaid leave allowance, maximum compensation for unfair termination, and service @ 15 days for each year worked. He further sought costs of this suit and interest on the foregoing at Court rates. It was the claimant’s averment that the Respondent employed him on or about 1st April 2004 as a Security guard initially earning a monthly wage of Kshs. 4,800/- that was later improved to Kshs. 17,500/- as of April 2017. That on 27th April 2017, the Respondent unprocedurally terminated his employment for alleged desertion of duty, which he alleged was trumped up charges. He averred that he had been deployed to KIRDI offices at the time of the said allegation and that it was alleged the Respondent had sent him letters seeking to redeploy him but which letters he never received.

2. In his Statement, the claimant asserted that he was dispatched in May 2005 as the night in-charge earning a monthly wage of Kshs. 6,500/- that was increased to Kshs. 7,800/- between 2006 and 2007. He stated that when he was promoted to Supervisor at KEMRI in September 2009, his monthly wage was increased to Kshs. 10,800/- and to Kshs. 12,500/- in 2011 after he was posted to KURA. He further asserted that he was posted to Nyeri at a monthly wage of Kshs. 15,000/- and finally returned to KURA where his final wage was Kshs. 17,500/-. That his final posting was in August 2015 to KIRDI, where he served until 29th May 2017. It was the claimant’s assertion that the letters dated 19th and 27th April 2017 from the Respondent, which he did not receive, purported that he had deserted his duties and further alleged that he had refused a posting. He contended that the said letters and notices were solely designed to give validity to a scheme to unlawfully and unfairly dismiss him from employment and ensure that he lost his benefits.

3. The Respondent did not file any appearance or defence and the matter was certified as an undefended cause. The matter then proceeded on formal proof where the claimant testified. The claimant testified that the reason given by the Respondent was that he was in a place not authorised yet he had a dispatch for the same. He referred to the Dispatch Note at No. 9 in his bundle of exhibits. He further stated that the Respondent did not pay him in full and that his April and May 2017 salary was not paid and that he was also not given notice and had not taken leave. He asked the Court to grant his prayers as per the Claim. The claimant then filed submissions.

4. In his Submissions, the claimant asserted that the Dispatch Note was the tool the Respondent used to deploy and that he had acted on the said dispatch note. He stated that he had also produced his employment card and payslip to show that he earned a monthly wage pf Kshs. 17,500/-. It was his submission that since the termination lacked legal basis and was based on contrived reasons, the same was unfair and demanding of the award of 12 months’ pay, to act as a deterrent and to compensate him for the impunity and high handedness of the Respondent. Further, that his evidence was uncontroverted and he had proved his case to the required standard.

5. The claimant was a guard and was somehow dismissed for alleged desertion. The claimant asserts that he was deployed to KIRDI offices at the material time. The Respondent did not demonstrate that the letters allegedly sent to the claimant seeking to redeploy him were ever received by the claimant. Where an employer gives an employee instructions, the employer has to make sure the instructions are understood by its employee for the employee to be said to have failed to oblige. In this case, there is allegation the claimant was redeployed. These instructions did not reach the intended target. In his service, the claimant was at a designated spot and there is nothing that would have stopped the employer from even summoning the employee to the head office for redeployment if indeed the assignment had been changed to another place. The allegation that the claimant absconded duty was therefore a trumped-up charge intended to paint the claimant in bad light and lead to the loss of benefits. The employer did not even attempt to demonstrate there was sufficient cause for the termination of the contract. As such, the claimant’s termination is found to have been unfair and unlawful in terms of sections 43 and 45 of the Employment Act. As the claimant was not afforded the safeguards he was entitled to under the law, he will be entitled to the following reliefs:-a.One month’s salary in lieu of notice – Kshs. 17,500/-b.Leave for one month – Kshs. 17,500/-c.Compensation for unlawful termination set at 2 months – Kshs. 35,000/-.d.Certificate of service.e.Costs of the suit.f.Interest at court rates on the sums in (a), (b) and (c) above from the date of judgment till payment in full.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9THDAY OF NOVEMBER 2023NZIOKI WA MAKAUJUDGE