[2019] KEELRC 1178 (KLR)
The court found that the Claimant was summarily dismissed for gross misconduct after admitting to keeping a mobile phone found at his place of work for over eight days without making reasonable efforts to identify or return it to the rightful owner. The court determined that the Claimant's explanation of conducting...
Source-derived case information.
- Citation
- [2019] KEELRC 1178 (KLR)
- Parties
- Claimant: Daniel Odhiambo Owino; Respondent: Brinks Security Services Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2162 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim dismissed save for order for certificate of service.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Summary Dismissal, Overtime Claims, Salary Arrears, Gratuity Entitlement, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Odhiambo Owino
Claimant
Brinks Security Services Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the summary dismissal of the Claimant was fair and lawful.
- 2 Whether the Claimant is entitled to salary in lieu of notice and compensation for unfair termination.
- 3 Whether the Claimant is entitled to overtime pay, salary arrears, and gratuity.
Ratio Decidendi
The court found that the Claimant was summarily dismissed for gross misconduct after admitting to keeping a mobile phone found at his place of work for over eight days without making reasonable efforts to identify or return it to the rightful owner. The court determined that the Claimant's explanation of conducting investigations was not credible and amounted to an afterthought. Consequently, the summary dismissal was fair and lawful under section 44(4)(g) of the Employment Act, 2007. The claims for salary in lieu of notice and compensation for unfair termination were therefore not available. The court further held that the overtime claim was time-barred under section 90 of the Employment...
Court Disposition
Claim dismissed save for order for certificate of service.
Orders
- The Respondent shall issue a certificate of service to the Claimant forthwith if one was not issued or collected.
- The remainder of the Claimant's claims are dismissed.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2162 OF 2014
DANIEL ODHIAMBO OWINO....................................CLAIMANT
v
BRINKS SECURITY SERVICES LTD...................RESPONDENT
JUDGMENT
1. Daniel Odhiambo Owino (Claimant) instituted legal proceedings against Brink Security Services Ltd (Respondent) alleging unfair and unlawful termination of employment and refusal to pay terminal benefits (an Amended Statement of Claim was filed on 20 February 2019 after grant of leave).
2. Although the Respondent was granted liberty to file an Amended Response, none was filed, and the Court will therefore rely on the earlier Amended Response filed on 23 July 2018.
3. The parties filed Agreed List of Issues on 26 February 2019, and the Cause was heard on 5 April 2019. The Claimant and the Respondent’s Assistant Human Resources Manager testified (they also adopted filed witness statements).
4. The Claimant filed his submissions on 3 May 2019 while the Respondent filed its submissions on 3 June 2019.
5. The Court has considered the pleadings, evidence and submissions.
Unfair termination of employment
6. Issues 1 and 2 raised the question of the fairness of the termination of the Claimant’s employment.
7. The Respondent’s case was that the Claimant was summarily dismissed from work under section 44(4)(g) of the Employment Act, 2007 after admitting that he had stolen a mobile phone at his place of assignment.
8. To demonstrate that the Claimant had admitted to the theft of the phone, the Respondent produced a copy of a statement recorded by the Claimant on 28 March 2013.
9. The Court has keenly looked at the statement. The Claimant admitted therein having found the phone in question on the evening of 20 March 2013 in the sales area of the shop he was guarding, and that he had kept the phone while carrying out investigations to find out the owner/person who lost it.
10. The Claimant was guarding a Safaricom shop whose primary business included sell of mobile phones. He found a phone in the shop sales area, and kept the phone for over 8 days allegedly while carrying out investigationsto find the owner.
11. If the Claimant was true and honest to his duties as a security guard, part of his investigations should have included making inquiries with the Safaricom sales staff. There was no suggestion that he inquired from the sale staff in the shop. He should have handed over the phone to the sales staff.
12. In the view of the Court, the Claimant had no intention of establishing the owner of the phone. The conducting investigations story was simply that, a story, an afterthought after having been tracked using the phone.
13. Under the circumstances, the Court finds that the summary dismissal of the Claimant was fair.
14. Salary in lieu of notice and compensation are therefore not available as remedies.
Breach of contract
Overtime
15. It is a notorious fact that security guards in this country work 12 hour shifts, and therefore are entitled to overtime (the weekly hours of work under the Regulation of Wages (Protective Security Services) Order, 1998 was set at 52 hours spread over 6 days. Work beyond the set hours should be compensated as overtime).
16. The copies of pay slips produced by the Respondent did not have any element of overtime pay.
17. The Respondent did not produce any records to show payment of overtime or working hours/attendance records, but urged in submissions that the head of claim constituted a continuing injury which ended with separation in April 2012, and therefore should have been instituted within 12 months in terms of section 90 of the Employment Act, 2007.
18. The Court agrees with the submission on limitation.
Salary arrears
19. The Claimant sought Kshs 85,000/- allegedly for the period he was on suspension for 9 months.
20. The Respondent denied that the Claimant was on suspension.
21. The Claimant was arrested on 29 March 2013, and was dismissed on 17 April 2013. It cannot be true that he was on suspension for 9 months.
22. The head of claim was not proved.
Gratuity
23. The Claimant sought Kshs 9,500/- as gratuity.
24. However, no evidential or legal foundation for gratuity was laid before the Court.
25. The Court notes that the Claimant was registered with the National Social Security Fund and would not be entitled to service pay.
Certificate of Service
26. A certificate of service is a statutory right and the Respondent should issue one to the Claimant forthwith if one was not issued/collected.
Conclusion and Orders
27. Save for an order for issuance of a certificate of service, the Court finds no merit in the Cause, and orders it dismissed.
28. No order on costs.
Delivered, dated and signed in Nairobi on this 12th day of July 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Nyabena instructed by Nyabena Nyakundi & Co. Advocates
For Respondent Mrs. Mutua instructed by M. M. Kimuli & Co. Advocates
Court Assistant Lindsey