Richard Kisiang’ani Wepukhulu v Taidy’s Restaurant [2013] KEELRC 952 (KLR)
The bottom line
#A Kenyan court ruled an employer must pay full wages during an unfair indefinite suspension, plus compensation or reinstatement for constructive termination.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to February 2013 wages despite suspension
Claimant entitled to Kshs.38,211.00 for February 2013
The suspension letter did not disentitle the claimant to wages already due for February 2013; the court fixed the award at the last gross pay for January 2013.
Outstanding annual leave days
Claimant entitled to Kshs.42,190.90 for 42 outstanding leave days, not 48 as claimed
The respondent demonstrated by evidence that the outstanding leave days at suspension were 42; the court computed the daily rate from the basic pay of Kshs.22,100 for 24 working days in a typical month.
Indefinite suspension for absconding duty
The indefinite suspension was unfounded and is lifted
The General Manager who wrote the suspension letter was not privy to the claimant's being on duty from 1.2.2013 to 18.2.2013. On a balance of probability the claimant's evidence that he worked and arranged an oral off was accepted.
Re-engagement or compensation for unfair constructive termination
Claimant entitled to re-engagement effective 1.01.2014 or alternatively Kshs.458,532.00 under section 49(1)(c) of the Employment Act
The indefinite suspension was not a termination but conduct entitling the claimant to consider himself terminated. The court framed the alternative remedy: re-engagement or compensation of 12 months' gross salary at Kshs.38,211.00 per month.
Wages for the period of suspension
Claimant entitled to Kshs.265,200.00 for March to December 2013
Applying its prior decision in the Timber Treatment case, an employee unfairly suspended carries a legitimate expectation to return to work and is entitled to at least partial reinstatement, i.e. salaries due during the suspension period, unless he took other gainful employment or failed to exculpate himself.
Legal principles established
#- An employee unlawfully or unfairly suspended is entitled to pay for the period kept away from work, absent other gainful employment or failure to exculpate
Court orders
#- 1.The respondent to pay the claimant Kshs.345,601.90
- 2.The respondent to reengage the claimant effective 1.01.2014 or in alternative to pay the claimant Kshs.458,532.00 for unfair constructive termination
- 3.The amounts to be paid by 1.2.2014, failing which interest is payable at court rates from the date of judgment
- 4.The respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (Employment Act, 2007, section 49(1)(c) applied)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- David Wekesa Nambafu v Bob Morgan Services Ltd [2020] KEELRC 1180 (KLR)[2020] KEELRC 1180 (KLR)29 Apr 2020
Cite this brief
#Cite this brief
Caselaw, "Richard Kisiang’ani Wepukhulu v Taidy’s Restaurant [2013] KEELRC 952 (KLR)", Case Analysis (2013). Industrial Court Cause No. 12 of 2013 (memorandum of claim filed 20.06.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/952/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.