Samuel Mukonesi Washisino v Rakesh Gudka & another [2013] KEELRC 648 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment was unfairly terminated
The termination was constructive and unfair; it was not a resignation and there was no redundancy
The employer, citing reduced work, sought to redeploy the claimant from shop assistant to farm work at Kshs.200/= per day in place of a monthly wage of Kshs.7,350/=, without negotiation. The court held this unilateral variation went to the foundations of the contract, amounting to constructive termination by the respondents, and that neither the procedure nor the substance was fair. The court distinguished resignation, which requires relinquishing the office held, and found no redundancy because the office was not abolished.
Entitlement to underpayments
Underpayments of Kshs.179,907.00 were established and payable
The underpayments were particularized in the memorandum of claim and the respondents raised no objection by pleadings or evidence. The court found the claim established and awarded the sum as prayed for.
Notice pay
One month's pay in lieu of notice of Kshs.10,867.50 awarded under section 35(1)(c) and section 36 of the Employment Act
The claimant was paid at monthly intervals, entitling him to one month's termination notice under section 35(1)(c), and therefore one month in lieu of notice under section 36 of the Employment Act. The claimant was awarded Kshs.10,867.50 as prayed for.
Compensation for unfair termination under section 49(1)(c)
Six months' gross salary, Kshs.65,205.00, awarded as compensation
In exercising the discretion under section 49(1)(c) of the Employment Act, 2007, the court considered the balance of justice and concluded that six months' gross salary at the last monthly pay of Kshs.10,867.50 would meet the ends of justice.
Liability of the respondents
Judgment entered against the respondents jointly and severally
As there was no written contract, and both respondents dealt with the claimant, the court held that the ends of justice would be served by entering judgment against the respondents jointly and severally.
Legal principles established
#- An employer who unilaterally varies fundamental terms of employment (duty station, pay, periodicity of pay) without negotiation constructively terminates the employee, who may properly treat himself as terminated
- Declining to take up a redeployment on inferior terms does not amount to resignation; resignation requires relinquishing the office held
Court orders
#- 1.A declaration that the claimant's employment was constructively terminated and the termination was unfair
- 2.The respondents to pay the claimant Kshs.255,979.50 by 15.08.2013, in default interest to be payable at court rates from the date of judgment till full payment
- 3.The respondents to pay the costs of the case
- Jurisdiction invoked
- Not expressly invoked; jurisdiction exercised under the Employment Act, 2007 (claims for unfair termination, notice pay, severance and compensation under sections 35, 36, 49(1)(c))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Mukonesi Washisino v Rakesh Gudka & another [2013] KEELRC 648 (KLR)", Case Analysis (2013). Cause No 28 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/648/eng@2013-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.