Joel Oreri Mogire v Abdul Hussein T/A Sunshine Cafe Nakuru [2013] KEELRC 768 (KLR)
The bottom line
#A Kenyan cook pushed out of his workplace won Kshs.173,890 after the court found his employer had unfairly and constructively terminated his 21-year employment.
What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
The claimant was employed by the respondent as a cook with effect from 1990, established on a balance of probability
The claimant testified he was employed as a cook in 1990. The respondent was unsure whether employment began in 1990 or 2004 and admitted records existed but were not filed. On a balance of probability the court accepted employment from 1990.
Whether the termination was unfair
The claimant was constructively and unfairly terminated; the respondent's account was not credible
The respondent alleged voluntary quitting but did not produce the alleged quit notice. The claimant's one-hour lateness was not proportionate to being pushed out of the workplace, which entitled him to treat himself as terminated. No reasons were given and the notice and hearing process under section 41 of the Employment Act was not followed. Long service had converted casual employment to permanent employment under section 37.
Remedies
Claimant awarded leave dues of Kshs.76,000.00 (less Kshs.2,000.00 already paid), 12 months' gross salary of Kshs.90,360.00 under section 49(1)(c), and one month's pay in lieu of notice of Kshs.7,530.00
There was no evidence of annual leave being accorded or paid in lieu except Kshs.2,000.00 paid in February 2010. Underpayment and severance claims failed for lack of evidence. Considering long service and the unfair constructive termination, the court awarded 12 months' gross salary, the last pay being Kshs.7,530.00, plus notice pay.
Legal principles established
#- An employee's otherwise casual service converts to permanent employment under section 37 of the Employment Act, 2007 after long service, entitling them to due process before termination
- Conduct by an employer that makes continued employment untenable amounts to constructive termination, which must still comply with the notice and hearing requirements of section 41 of the Employment Act
Court orders
#- 1.A declaration that the claimant was constructively and unfairly terminated from employment by the respondent
- 2.The respondent to pay the claimant a sum of Kshs.173,890.00 by 1.12.2013, failing which interest to be payable at court rates from the date of judgment till full payment
- 3.The respondent to pay costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act, 2007 (court not stated to have invoked a specific constitutional provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Oreri Mogire v Abdul Hussein T/A Sunshine Cafe Nakuru [2013] KEELRC 768 (KLR)", Case Analysis (2013). Cause No 100 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/768/eng@2013-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.