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Court of AppealDismissedCivil Appeal No. 55 of 2015· [2016] KECA 471 (KLR)

Board of Governors Cardinal Otunga High School Mosocho & 2 others v Elizabeth Kwamboka Khaemba [2016] KECA 471 (KLR)

Court of Appeal of Kenya
2 June 2016
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,885 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that employers who reassign workers to new duties without consulting them face constructive dismissal claims and hefty damages.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A.) dismissed this appeal against a judgment of the Industrial Court at Kisumu (Hellen Wasilwa, J.) which had found that the respondent, a school cateress, was constructively dismissed. The respondent was placed on three months' unexplained compulsory leave and on her return was assigned a supervisory role in the cleanliness of the boarding area, duties outside her professional competence and enumerated job description. The appellants argued that the new duties fell within the general clause 'doing other duties assigned by the head teacher' and that the respondent had absconded duty. The court held that the reassignment was a unilateral variation of the contract effected without consultation, in violation of section 10(5) of the Employment Act, and that the general duties clause had to be read ejusdem generis with the cateress's enumerated duties. Applying the doctrine of constructive dismissal as stated in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga and Lord Denning's formulation in Western Excavating (ECC) Ltd v Sharp, the court found that the unilateral reassignment was a significant breach going to the root of the contract, entitling the respondent to treat herself as discharged; she did not abscond. Since the appellants had not appealed against quantum, the awards of one month's salary in lieu of notice, twelve months' salary in damages and fifteen days' salary per year served as terminal benefits were left intact. The appeal was dismissed with costs to the respondent. The decision binds subordinate courts and tribunals on unilateral variation of employment contracts and constructive dismissal.

Key legal issues

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01

Whether unilateral reassignment of duties amounted to termination of the employment contract

Holding

The unilateral reassignment of the cateress to duties outside her professional scope was a significant breach going to the root of the contract, amounting to constructive dismissal; the respondent did not abscond duty but was entitled to treat herself as discharged.

Reasoning

The court applied the doctrine of constructive dismissal as articulated in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga and Lord Denning's test in Western Excavating v Sharp. Duties such as supervising cleanliness of the boarding area fell outside the enumerated duties of a cateress. The respondent was not consulted, violating section 10(5) of the Employment Act, which requires consultation before revising a contract. Her refusal to take up the new role was a legitimate response to repudiatory conduct, not abscondment.

p. 4
02

Whether the respondent absconded duty

Holding

The respondent did not abscond; she was entitled to treat the unilateral variation as a repudiation and refuse to perform.

Reasoning

Having correctly construed the employer's conduct as a repudiation of the contract, the respondent's departure from her catering duties was a lawful reaction to constructive dismissal rather than desertion. The court endorsed the trial court's finding that the new duties violated her terms of service and that she could not supervise cleanliness in boys' dormitories.

p. 4

Legal principles established

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  • Unilateral assignment of duties outside the scope of the employment contract, without consultation, is a significant breach going to the root of the contract entitling the employee to treat herself as constructively dismissed
  • An employer must consult with an employee before revising a contract of employment, as required by section 10(5) of the Employment Act
  • A clause permitting 'other duties assigned by the head teacher' must be construed ejusdem generis with the employee's enumerated duties and does not justify reassignment to wholly unrelated duties

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment of the Industrial Court awarding the respondent one month's salary in lieu of notice, twelve months' salary as damages for unlawful termination and fifteen days' salary per year served as terminal benefits is upheld

Authorities

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Legislation

  • Employment Act, 2007section 10(5)
  • Employment Act, 2007section 49

Cases cited (2)

  • COCA COLA EAST & CENTRAL AFRICA LIMITED v MARIA KAGAI LIGAGA
    [2015] eKLR
  • WESTERN EXCAVATING (ECC) LTD v SHARP
    [1978] 1 CR 222
On appeal from
Industrial Court of Kenya at Kisumu
Industrial Cause No. 190 of 2013
Jurisdiction invoked
First appellate jurisdiction over appeals from the Industrial Court (Employment and Labour Relations Court) under the Employment and Labour Relations Court framework

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Board of Governors Cardinal Otunga High School Mosocho & 2 others v Elizabeth Kwamboka Khaemba [2016] KECA 471 (KLR)", Case Analysis (2016). Civil Appeal No. 55 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/471/eng@2016-06-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.