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The Employment and Labour Relations Court in Nairobi recently delivered a judgment in the case of Derick Pius Kaunda Okari v Kenya Kazi Security Services Ltd [2016] eKLR involving a security guard employed by Kenya Kazi (KK) Security Services Limited to work at the USA Embassy in Nairobi on 23rd September, 2002 and worked until 22nd July, 2013 when he claimed he was unlawfully terminated out of discrimination, victimization and false malicious allegations that he had posted inciteful messages on his Facebook account.

Okari was involved in the Collective Bargaining Agreement negotiation between his Union and KK Security which culminated in Cause No. 1449 of 2011 in which the Court awarded the employee’s salary increment. According to Okari KK Security developed bad blood between itself and him because of the Court award and had always sought a way of terminating his services.

On 10th July 2013, Okari averred that without any good reason KK Security maliciously alleged that he had posted a message to his Facebook account which amounted to misconduct and suspended him from work. Okari further complained that on 10th July, 2015 the respondent wrote to him to show cause and on 19th July, 2013 he was called to the office for disciplinary action at which he was not given an opportunity to be heard nor was he shown the alleged offensive Facebook messages. Okari denied posting any inciteful messages on social media.

KK Security claimed that Okari who was assigned duties as a security guard and whose position required utmost trust and responsibility breached that through activities which were detrimental to the respondent’s operations and image and contrary to the terms of the contract of service and his legal obligations under the Employment Act. According to the security company, Okari posted on social media Facebook, comments that were detrimental to the image of the respondent. The comments were in one way or the other intended to incite Okari’s colleagues.

According to the court, the Employment Act requires an employer to have a valid or justifiable reason prior to dismissing an employee. The burden of proving the validity or justifying the reason for dismissal rests with the employer and failure to discharge the burden would lead to a finding that the dismissal was wrongful or termination unfair. The court stated that the test is usually whether a reasonable employer would dismiss for the reasons presented. If the answer is in the affirmative, the dismissal will be upheld. The standard of proof is of course on a balance of probability.

In the present case, the court noted that Okari was dismissed as a result of his social media posts which KK Security felt were inciteful and bordered on hate speech. The extracts of the posts were exhibited in Court as evidence. The Court reviewed the said social media posts and cited one post that was close to the accusations leveled against the claimant was posted on May 26. It read:-

“ALL KK Embassy on SOS on ngt shift, 2morrow we converge at Outside NSSF building 4 a word b4 Court [Cause no. 1449 of 2011] commences”

With the regard to the above post, the court noted Okari’s evidence that the colleagues he addressed in this post were those who worked in the previous night and would not be required at work that day. As such the court found that these posts were private communication between Okari and his social media friends. They did not directly concern KK Security save for the one reproduced above. In this regard, the court found in favour of Okari and stated as follows:

“The [facebook posts] were what the court could describe as the ranting and ravings of a person excited over social media. If at all anyone was incited as against the respondent [KK Security] as a result of these messages no evidence was led to that effect. The mere posting of a message perceived to be inciteful is not enough. A person or persons must be incited for the author to be held responsible. People react differently to messages and it cannot be said with exactness that they would be incited if no overt act of incitement takes place. In the circumstances the Court finds the reason for dismissing the claimant has not been sufficiently proved and the Court therefore finds his termination unfair.”