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ELRCPartially AllowedMemorandum of Claim dated 10th July, 2012, filed 13th July, 2012· [2013] KEELRC 222 (KLR)

Geoffrey Kwatemba Opesa v Biblia Husema Broadcasting [2013] KEELRC 222 (KLR)

Industrial Court (Employment and Labour Relations Court)
13 August 2013
MNMathews N. Nduma
2,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee who resigned after a transfer won Kshs.383,450 in unpaid commission but failed to prove he was constructively dismissed.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a news editor in April 2009 and later transferred to Eldoret as operational manager, received a further transfer to Biblia Husema Broadcasting, Lokichogio as radio station manager in February 2012. He requested reconsideration on grounds including his child's schooling, his degree programme at Kisii University College, and his apprehension about management roles. The Acting Director telephonically demanded he report immediately or face termination. The Claimant resigned on three months' notice, citing frustrations including being reported as having absconded, being forced to suspend a staff member, and alteration of meeting minutes. He claimed unpaid 10% commission of Kshs.383,450/=, three months' notice pay of Kshs.54,613/=, and damages for wrongful dismissal. The Respondent denied any commission agreement, asserting terminal dues of Kshs.170,800/= were fully paid. After refusing a second adjournment, the court heard the Claimant's testimony and received written submissions. Applying Fernant v. Key Delta, the court held the transfer was not a silent repudiation and the cited frustrations insufficient; constructive dismissal was not proved and the resignation was voluntary. However, pay slips, receipts and a bank statement proved regular payment of 10% commission, and the Respondent's bare denial could not counter the figures. The court ordered payment of Kshs.383,450/= commission with interest at court rates from the date of filing suit, dismissed all other claims, and awarded the Claimant costs.

Key legal issues

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01

Constructive dismissal

Holding

The transfer to Lokichogio did not amount to a silent repudiation of the contract; the resignation was voluntary

Reasoning

The court applied the test that a contracting party may cancel only where the other party's words or conduct evince a clear intention not to perform. The transfer to head the radio station was not a silent repudiation, and the further frustrations cited were insufficient to make continued employment unreasonable. The burden of proof on a balance of probabilities was not discharged.

p. 4
02

Entitlement to 10% commission

Holding

Claimant entitled to Kshs.383,450/= unpaid commission

Reasoning

Pay slips for September 2009, March and June 2010 and May 2011, receipts, and an Equity Bank statement showed regular payment of 10% commission. The Respondent made only a bare denial. Uncontradicted figures in the statement of claim were accepted.

p. 5
03

Notice pay

Holding

Claim for three months' notice pay failed

Reasoning

One month's salary in lieu of notice had been paid; the alleged shortfall of Kshs.6,613/= was presumed to be statutory deductions including tax. The claim for three months was unsubstantiated.

p. 5

Legal principles established

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  • Constructive dismissal requires conduct evincing a clear intention not to perform contractual obligations, such that the employee can no longer reasonably be expected to continue in employment
  • An employer's bare denial, uncontradicted by evidence, cannot defeat documentary proof of an entitlement such as commission paid through pay slips and bank statements

Court orders

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  1. 1.The Respondent to pay the Claimant Kshs.383,450/= being unpaid 10% commission as at the time of resignation
  2. 2.Interest on the said sum at court rates from the date of filing suit to the date of payment in full
  3. 3.All other claims by the Claimant in the statement of claim dismissed
  4. 4.The Respondent to pay the costs of the suit

Authorities

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Legislation

  • Staff Warrants, Conditions and TermsClause G

Cases cited (2)

  • Moses Dlamini and Bromor Foods Swaziland (pty) Ltd
    Case No. 127/97 (IC)
  • Fernant v. Key Delta
    (1993) 14 ILJ at 464
Jurisdiction invoked
First-instance employment and labour relations dispute under the Industrial Court's jurisdiction

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, "Geoffrey Kwatemba Opesa v Biblia Husema Broadcasting [2013] KEELRC 222 (KLR)", Case Analysis (2013). Memorandum of Claim dated 10th July, 2012, filed 13th July, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/222/eng@2013-08-13

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