Anthony Mwangi Chege v Shazmeer Jiwan t/a Body Executive Health Centre [2013] KEELRC 23 (KLR)

Industrial Court of Kenya

9 December 2013

JRJames Rika

985 words in judgment

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The bottom line

A Kenyan court ruled that a suspended employee who claimed KShs 1.8 million for unfair dismissal got nothing because his job had never actually ended.

What this practically means

Executive summary

The Claimant, employed by the Respondent as General Manager of Bodyworks Executive Health Centre in Mombasa on a monthly salary of Kshs. 77,704, alleged that his contract was terminated at the Respondent's initiative on 29th October 2011 after he demanded arrears of salaries from two other companies belonging to the Respondent and a consolidated payslip. He claimed Kshs. 1,833,814 comprising unpaid October 2011 salary, one month's pay in lieu of notice, unpaid public holidays pay, leave pay, house allowance, service pay and 12 months' salary for unfair termination, plus costs and interest. The Respondent denied terminating the contract, asserting the Claimant was suspended on 7th November 2011 pending investigations and disciplinary proceedings, that the claim was premature, and that the Claimant remained an employee under suspension. The matter proceeded ex parte on 23rd May 2013 after the Respondent and his counsel failed to attend. The Court held there was no evidence of termination; it was illogical that a suspension letter would issue after a dismissal, and the suspension letter showed the Claimant was to attend a disciplinary process. Unfair termination remedies and terminal benefits arise only upon termination or constructive dismissal. The claim was premature. The Court ordered the Claimant to report back to work within 30 days, required the Respondent to give written advice on the suspension, accrued salaries and contract status, and granted liberty to revert to the Court after exhaustion of workplace grievance mechanisms. No costs order was made.

Key legal issues

Whether the Claimant's employment was terminated on 29th October 2011

Holding

There was no evidence of termination; the Claimant was suspended on 7th November 2011 pending investigations and disciplinary process, and it was illogical to suggest a suspension letter would issue after a dismissal

Reasoning

The Court found the suspension letter of 7th November 2011 clear that the Claimant was to attend a disciplinary process, and he was asked to cede duties to another officer pending investigations. It was not logical for an employer to issue a suspension letter after dismissing the employee. The Claimant produced no evidence that his contract was terminated on 29th October 2011, and the employer affirmed the contract remained alive.

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Whether the claim was premature and entitlement to terminal benefits arose

Holding

The claim was premature; terminal benefits and unfair termination remedies could not be awarded in the absence of termination or constructive dismissal

Reasoning

The Court held that unfair termination remedies and terminal benefits presuppose termination or constructive dismissal. Since the employer maintained the contract was still alive and the employee was on suspension awaiting disciplinary process, the employment relationship subsisted. The Claimant was directed to report back to work within 30 days, and parties were allowed to return to the Court after exhausting workplace grievance and dispute resolution mechanisms.

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Legal principles established

The law of unfair termination and payment of terminal benefits applies only where there is a clear case of termination of employment or constructive dismissal
A suspended employee required to submit to a disciplinary process should not treat employment as at an end where the employer affirms the contract is still alive; claims for unfair termination are premature until internal grievance mechanisms are exhausted

Court orders

1.The Claimant shall report back to his employer Shazmeer Jiwan, within 30 days of the delivery of this Award
2.The Respondent shall give written and express advice to the Claimant on the Claimant's suspension; pending investigations and disciplinary process; accrued salaries from the date of suspension; and the status of the contract of employment
3.Parties may revert to the Court under the same Cause Number 1097 of 2012, upon the exhaustion of the workplace grievance and dispute resolution mechanisms
4.The Claimant to serve the Respondent with a copy of this Award

Jurisdiction invoked: Original jurisdiction of the Industrial Court over employment and labour relations disputes

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Anthony Mwangi Chege v Shazmeer Jiwan t/a Body Executive Health Centre [2013] KEELRC 23 (KLR)", Case Analysis (2013). Cause Number 1097 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/23/eng@2013-12-09

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