Labour court awards security guard Sh1.4m for unfair sacking

A security guard whose case was dismissed by a lower court has found reprieve after a higher court awarded him some Sh1,464,545 as relief for unfair sacking.

The bulk of the amount, Sh1,196,858 arose from argument that his employer JRS Group Limited failed to pay the 60-year-old guard pegged on a monthly earning of Sh9,000 as he put in extra hours to make an extra coin.

Another Sh225,265 went to settle his underpayments, and Sh42,425 Gratuity.

Christopher Onyango Oduori had been dismissed by the Winam Principal Magistrate's Court on his first attempt of seeking justice against the employer until the Employment and Labour Relations Court in Kisumu came to his rescue.

The court faulted the lower court for not considering the abuse of labour laws by JRS which made the guard miss out on his rights.

"With regard to overtime and rest days, Oduori sought a cumulative total of Sh1,196,858 on account of overtime and rest days worked but not paid from September 2016 to December 2018.

"It is a notorious fact that the Court can and takes judicial notice that security guards work 12-hour shifts. He testified that he worked seven days a week including during public holidays," said Justice Stephen Radido.

"Regulation 6 of the Regulation of Wages (Protective Security Services) Order, 1998 provides for 52 hours of work spread over six days of the week, and Regulation 7 sets out the formula for calculating overtime pay while Regulation 8 provides for 1 rest day each week."

He said the employer did not also controvert the guard's case on overtime/rest days nor produce the records envisaged under section 10(3) of the Employment Act, 2007 making the court award the amount the guard sought.

The guard also asserted that he was being paid below the prescribed minimum wage from September 2016 to December 2018 which he said cost him a loss of Sh225,262, a claim that Justice Radido also awarded him.

"JRS general manager who testified admitted during cross-examination that he was aware of the Regulation of Wages (Amendment) Orders 2016, 2017 and 2018, and that Oduori's wage was not adjusted to reflect the prescribed minimum wages. He indicated that he was earning Sh9,000 which was below the prescribed minimum wage," said Radido who also ordered JRS to issue a certificate of service to its former employee within 30 days of the Wednesday judgment.

Oduor first sued JRS Group before the Senior Principal Magistrates Court Winam on November 11, 2022 alleging unfair termination of employment and breach of contract.

In a judgment delivered on July 25, 2023 the Senior Principal Magistrate found that Oduor had voluntarily retired and, therefore, the case was not one of unfair termination of employment. The case was dismissed. Not one to easily give up, on August 24 last year, he filed an appeal, saying the lower court erred in failing to adequately evaluate the evidence and exhibits tendered and therefore arrived at the decision unsustainable in law.