Security guard gets Sh191,000 for unlawful termination of services

Kenya: Edward Shabaya was employed by KK Security Limited as a security guard on casual basis in 1995. On December 1, 1996 he was confirmed as a response crew.

He rose through the ranks but on June 29, 2009 he was sacked on grounds of negligence leading to loss of confidence. At the time of the dismissal his monthly wages was Sh13,530.

On July 8, 2013 he filed a case in court claiming wrongful dismissal, unpaid terminal benefits, arrears and payment in lieu of notice and damages for defamation.

Mr Shabaya claimed that his former employer unlawfully dismissed him without complying with the Employment Act, 2007, the rules of natural justice, contractual terms that called for a one month notice or pay in lieu of notice.

The case was heard on June 4 and July 16, this year by Justice Stephen Radido. Shabaya told the court that on the material day, he received an anonymous phone call about an incident at NOTCO yard in Changamwe, Mombasa.

The caller refused to identify himself. Shabaya, nonetheless, instructed the nearest back-up crew to go to the scene. He also informed the KK Security firm’s Investigations Officer Peter Onyango.

The back-up team reported back that there was no incident and the report was entered into the control room’s Occurrence Book.

Shabaya told the court that he was sacked because he did not record the incident in the Control Room Log Sheet. His argument was that the company procedures did not require him to make entries in the Control Room Log Sheet if the incident was not major, like this particular case.

Unfair hearing

In his submission, he stated that he was asked to explain why he had not recorded the incident on the log sheet, and was also called before a panel comprising the company’s operations manager, assistant human resources manager and the guard commandant.

He told the court that at the time of his sacking, he had 436 outstanding overtime hours and was entitled to Sh130 per hour as overtime pay. He insisted that the termination of his service was unprocedural as the sacking letter was signed by the branch manager and not the human resources manager.

He sought a declaration that his dismissal was wrongful, damages for wrongful dismissal, unpaid overtime and costs of the suit and interest.

The company said Shabaya was dismissed for negligence and careless execution of his duties in November and December 2008. The company accused him of failing to document an incident which happened in the Control Room Incident Log Sheet as required.

 

The company maintained that it afforded Shabaya a fair hearing before terminating his services and that he failed to exonerate himself. Further, the company argued that Shabaya was a member of the National Social Security Fund and KK Security pension scheme and that he was paid all his overtime and accrued leave, one month pay in lieu of notice and ex-gratia service pay.

Under the Employment Act 2007, Shabaya should have instituted the case within three years. The deadline therefore was June 24, 2012. He argued that he had filed the case before a magistrate's court in Mombasa in 2010, which decided that the matter should be filed in the Industrial Court. And since KK Security did not raise the issue of limitation of time, the court did not deal with it.

The court rejected the argument that Shabaya had been accorded a fair hearing by a panel of senior officers.

“The Court cannot accept this submission because the parties and more so the Respondent did not clarify whether this was an investigation/inquiry to establish the facts upon which to commence disciplinary action or a disciplinary hearing as contemplated by law. The two processes have distinct purposes and objectives,” the judge said.

The judge noted that the company opted not to call any witnesses in the case. No record or minutes of the panel was produced. There was no evidence in court to show the proceedings of the panel and nothing to show that Shabaya was informed that his dismissal was under consideration.

Employment act

“The Respondent has failed to demonstrate that it was in substantial compliance with the procedural safeguards in section 41 of the Employment Act,” the court concluded.

The court further considered that Shabaya’s arguments on how to record incidents was not controverted.

“The incident in question was entered into an OB and not Incident Log Sheet because according to the Claimant, it was a minor incident. There was some record somewhere and in the view of the Court, the Respondent has failed to prove the reasons for the termination of the services of the Claimant, and that the reasons were valid and fair,” Judge Radido ruled, holding that the termination was substantively unfair.

The judge considered that Shabaya had worked for KK Security for 13 years and was paid terminal dues. The court decided to award him an equivalent of 10 months gross wages amounting to Sh135,300. It also awarded him Sh56,680 as unpaid overtime and also costs of the case.