James Chutha Gathere v Nation Media Group Limited [2013] KEELRC 601 (KLR)
The bottom line
#When an employee resigns with notice, the Kenyan employer must respond clearly and in writing, or risk paying the full notice period in lieu.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant resigned or was terminated by the respondent
The ambiguous 12th August 2010 communication from the respondent amounted to termination at the instance of the respondent, without notice, despite the claimant's earlier resignation notice
The claimant tendered a resignation giving the contractual 3 months' notice and asked to serve until November 2010, using leave within the notice period and doing a proper handover. The respondent's letter of 12th August directed him to vacate by close of business without stating the terms of any waiver. In the absence of evidence from the respondent (who called no witness), the claimant's account was accepted, and the letter was found to be a directive rather than an acknowledgement of the resignation notice.
Statutory framework on notice, payment in lieu and waiver of notice
Sections 35, 36 and 38 of the Employment Act govern notice, payment in lieu of notice, and waiver of notice; a termination notice may be accepted, negotiated or waived on terms agreed between the parties
The court reviewed sections 35, 36 and 38 of the Employment Act, holding that resignation is a form of termination of which notice must be given as agreed in the contract. The receiving party must acknowledge the notice and commence termination processes, and where notice is waived, the terms of the waiver must be clearly documented and communicated. The employer's failure to do so with certainty and without ambiguity places it in fault.
Quantum of terminal dues
Notice pay of Kshs.504,000.00 (3 months at Kshs.168,000), commission of Kshs.86,000.00 and leave pay awarded, less car loan offset of Kshs.571,458.40
The contractual notice period was 3 months; the last salary was taken as Kshs.168,000.00 per month because the employer failed to produce the pay slip despite the burden resting on it. The commission of Kshs.86,000.00 was not materially challenged. The claimant admitted an outstanding car loan of Kshs.571,458.40, which was offset against the total dues.
Legal principles established
#- The duty to explain termination procedures rests with the employer even where the employee gives notice, and ambiguity on the part of the employer is construed against it
- Where an employment record such as a pay slip is disputed and the employer fails to produce it, the court will accept the employee's stated salary
- Unpleaded claims or submissions not supported by pleadings and evidence cannot be granted
Court orders
#- 1.Judgment entered for the claimant against the respondent
- 2.Notice pay of Kshs.504,000.00
- 3.Outstanding commission of Kshs.86,000.00
- 4.Pay for 17 leave days at Kshs.95,200.00
- 5.Car loan balance of Kshs.571,458.40 offset from total dues, leaving Kshs.113,742.00
- 6.Respondent to issue a Certificate of Service to the claimant within 14 days
- Jurisdiction invoked
- Industrial Court of Kenya established under the Labour Relations Act; claim for terminal dues under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Chutha Gathere v Nation Media Group Limited [2013] KEELRC 601 (KLR)", Case Analysis (2013). Cause No. 1346 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/601/eng@2013-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.