[2017] KEELRC 998 (KLR)
The court found that the respondent failed to follow due procedure as required under section 41 of the Employment Act, 2007, by not providing the claimant with notice and a hearing prior to termination on medical grounds. Although the respondent offered the claimant alternative employment, the claimant did not...
Source-derived case information.
- Citation
- [2017] KEELRC 998 (KLR)
- Parties
- Claimant: George Nguyo Mwangi; Respondent: Group 4 Security Services (G4S) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 3 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant for unfair termination; partial monetary award granted.
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Termination on Medical Grounds, Procedural Fairness, Remedies for Unfair Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
George Nguyo Mwangi
Claimant
Group 4 Security Services (G4S) Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment on medical grounds was procedurally and substantively fair.
- 2 Whether the claimant is entitled to the remedies sought for unfair termination.
Ratio Decidendi
The court found that the respondent failed to follow due procedure as required under section 41 of the Employment Act, 2007, by not providing the claimant with notice and a hearing prior to termination on medical grounds. Although the respondent offered the claimant alternative employment, the claimant did not respond to this offer but had since mitigated his loss by securing another driving job. The court determined that the termination was unfair due to procedural lapses. However, the court limited the award to three months’ salary for unfair termination and one month’s salary in lieu of notice, as there was no evidence to support the other claims. Costs were awarded to the claimant due...
Court Disposition
Judgment for the claimant for unfair termination; partial monetary award granted.
Orders
- The respondent shall pay the claimant Kshs. 172,436.00 by 01.09.2017, failing which interest shall accrue at court rates from the date of judgment until full payment.
- Costs awarded to the claimant and fixed at Kshs. 30,000.00 all inclusive.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO. 3 OF 2017
GEORGE NGUYO MWANGI.............................................CLAIMANT
VERSUS
GROUP 4 SECURITY SERVICES (G4S) LIMITED.......RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday, 14th July, 2017)
JUDGMENT
The claimant filed the memorandum of claim on 06. 01. 2017 through Peter M. Muthoni and Company Advocates. The claimant prayed for judgment against the respondent for:
a. Declarations that his claim is valid and that the termination was unlawful, 12 months’ gross salary Kshs.437, 308. 00; 3 months’ pay in lieu of termination notice Kshs.106, 827. 00; payment for 10 years served Kshs. 356, 609. 00; making a sum of Kshs. 900,526. 00; and general damages for distress (mental agony and anguish) plus interest.
b. Costs of the suit.
The claimant was employed by the respondent effective 01. 01. 2007. The claimant was employed as a driver and as at termination he earned Kshs. 35, 609. 00 per month.
The claimant was terminated by the letter dated 24. 10. 2016 on account of medical reasons. It stated that reports by medical practitioners had confirmed that the claimant could not continue in employment by reason of his medical status. The letter filed and issued by the claimant by Dr. Francis Maina advised that the claimant needed to work in a station or position that could afford him good control of his blood sugar as well as reducing any danger to him-self in event of the hypoglycaemic episodes or attacks. It was stated by the doctor that the condition was lifelong ailment only managed on insulin which tended to reduce the claimant’s blood sugars depending on a lot of other factors.
In the termination letter, the respondent stated that the management extended an offer of employment under new terms of service to a non- driving role.
The claimant has not provided any information about his position in view of the offer of employment in a non-driving position.
Despite service, the respondent did not enter appearance and did not take part in the steps in the suit including the hearing.
The only issue for determination is whether the claimant is entitled to the remedies as prayed for. The court makes findings as follows:
a. The respondent did not accord the claimant the notice and the hearing as envisaged in section 41 of the Employment Act, 2007. Thus, the court considers that the respondent did not follow due procedure for termination on account of physical incapacity or ill health. The court returns that the termination was unfair. The court has considered that the claimant failed to consider the alternative job offered by the respondent and that the claimant has since mitigated his circumstances by taking on another driving job. For the unfair termination and under section 49(1) (c), the court considers that 3 months salaries will meet justice in this case plus one month pay in lieu of the termination notice making Kshs.142,436. 00 at Kshs.35, 609. 00 per month.
b. The court finds that there was no evidence to justify the other claims and especially that there was no material before court to show the amount of money paid to the claimant after the termination. Accordingly the other prayers will fail as unjustified.
c. As no defence was filed costs are awarded to the claimant and fixed at Kshs.30, 000. 00 all inclusive.
In conclusion judgment is hereby entered for the claimant against the respondent for payment of Kshs.172, 436. 00 by 01. 09. 2017 failing interest to be payable at court rates from the date of the judgment till full payment.
Signed, datedanddeliveredin court atNyerithisFriday, 14th July, 2017.
BYRAM ONGAYA
JUDGE