Labour Court warns employers against underpaying security guards

Night after night, Stephen Onyango guarded homes and businesses for seven years, earning a paltry Sh5,000 a month, far below the statutory minimum wage.

In a recent landmark judgment, the Employment and Labour Relations Court (ELRC) has finally tallied the real cost of that neglect and ordered Onyango’s employer, Kisspag Security Services, to pay him a total of Sh169,415 for underpayment and unpaid leave.

Awarding the guard compensation, Justice Jacob Gakeri warned employers across the country that statutory wage obligations are not negotiable and highlighted the harsh realities of informal employment in Kenya’s security sector, where oral contracts and poor record-keeping often leave workers vulnerable.

"It is trite law that minimum wage is a prescription of law and the relevant regulation of wages orders are binding on all employers. An employer who underpays an employee contravenes the law.”

Onyango, a night guard based in Ugunja Town, claimed he had been employed by Kisspag Security as far back as December 2017, earning a meagre Sh5,000 per month, well below the minimum wage prescribed under successive Regulation of Wages Orders.

Court evidence indicates that the guard worked continuously for seven years, seven days a week, including public holidays, from 6 a.m. to 6 p.m., without any increase of his payment of salary.

Matters escalated in January 2019 when Onyango was assaulted by a client during his duties.

He reported the incident to the police, but the company took no action.

"I was being paid far less than the law requires,” Onyango told the court.

"After the assault, I was constructively dismissed without notice, reason, or pay in lieu of notice.”

He however filed a case at the labour court seeking 12 months compesation.

Kisspag Security, however, painted a different picture. The company claimed Onyango was employed only from October 2019 at a slightly higher salary of Sh6,000 per month.

It alleged that on January 1, 2020, Onyango reported to work late and visibly intoxicated, assaulted a client, and thereafter deserted his duties.

The company filed letters dated January 5 and 15, 2020, documenting his alleged desertion.

Despite these claims, the court found the company’s evidence wanting.

Justice Gakeri noted that the security firm had no evidence to prove that the actual employment took place in 2019 as alleged and criticized the lack of written contracts, payslips, or credible records.

Applying Section 10(7) of the Employment Act, the court noted that where an employer fails to keep proper records, the employee’s version of events will often carry the day.

The court, however, clarified that Onyango’s claims for unfair termination, overtime, rest days, and gratuity were largely unproven.

"The appellant tendered no shred of evidence to prove his allegation of constructive dismissal,” the judge observed, noting that the absence of proof meant the claim for compensation for unlawful termination was unsustainable.

Yet, the core issue, underpayment, stood on solid ground. Minimum wage is not a matter for negotiation or convenience, the court emphasized.

By applying the 2017 and 2018 Wages Orders, including house allowances, the court recalculated Onyango’s entitlements and determined he was owed Sh157,226 in unpaid wages.

Payment for accrued leave brought the total award to Sh169,415.35, in addition to costs and a certificate of service.

"This judgment is a reminder that employers cannot hide behind informal arrangements or poor record-keeping to escape statutory duties,” Judge Gakeri said.

"Even where an employee is found to have deserted duty, accrued rights such as minimum wages and leave remain payable.”

The court reminded employers that minimum wage laws are binding commands and that underpayment stands on its own, separate from other employment disputes.