George Aseey v Mabati Rolling Mills Ltd [2014] KEELRC 426 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Voluntariness of the retirement/resignation
The retirement was not voluntary; the Claimant resigned after being asked to do so by the Executive Director under pressure following complaints by local politicians
The Claimant's account of a meeting with local leaders, the Executive Director's request that he resign after initially indicating a termination letter, and his subsequent complaint letter to the Chairman were unchallenged, as the Respondent called no oral testimony and did not controvert the evidence in any material way. The Court therefore found the separation was beyond the Claimant's control.
Salary in lieu of notice
Entitled to 30 days' (one month's) salary in lieu of notice per the written contract, not the 3 months claimed
The written contract provided for 30 days' written notice or payment of 30 days' pay in lieu of notice. The attempt to rely on payment of 2 months' notice pay to another employee failed because the circumstances of that employee's departure and his contractual terms were not disclosed. The award was limited to the contractual entitlement.
Gratuity based on a promise
Entitled to gratuity at 30 days' pay per completed year of service based on an uncontroverted promise by the Executive Director, less amounts already paid
Although the written contract did not provide for gratuity, the Claimant's unchallenged evidence was that the Executive Director promised gratuity at 30 days' wages per completed year of service. With no contra evidence, the benefit of doubt went to the Claimant. Computing 30 days' pay (Kshs 58,500 monthly wage) for 17 years yielded Kshs 994,500, less the Kshs 200,000 already paid, leaving Kshs 794,500.
Applicability of a Collective Bargaining Agreement to a non-union employee
The claim based on the CBA failed for want of proof of union membership or unionisable status; the Court declined to decide the scope of sections 57(1) and 59(1)(b) of the Labour Relations Act
The Claimant produced no evidence that he was a member of the Kenya Engineering Workers Union or that he was unionisable, and pointed to no statutory provision at the material time incorporating CBA terms into his contract. The Court noted the LRA provisions but expressly refrained from determining their exact limits.
Legal principles established
#- Under the pre-2007 statutory regime, an employer could terminate employment at will provided notice or damages equivalent to the notice period was given; wrongful termination attracts only contractual damages
- Ex gratia payments are discretionary and cannot be claimed as of right
Court orders
#- 1.Respondent to pay the Claimant one month's (30 days') salary in lieu of notice of Kshs 58,500
- 2.Respondent to pay the Claimant gratuity for 17 years of service of Kshs 794,500 (Kshs 994,500 less Kshs 200,000 already paid)
- 3.Total award of Kshs 853,100
- 4.Claims for loss of earnings and benefits up to retirement, ex gratia payment, loss of discriminatory grading and transportation of personal effects dismissed
- 5.Claimant to have costs
- Jurisdiction invoked
- First-instance jurisdiction of the Industrial Court following transfer by consent from the Kisumu High Court and by order of Kasango J on 29 October 2013
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Calista Kina Gitobu v Teachers Service Commission [2018] KEELRC 2002 (KLR)[2018] KEELRC 2002 (KLR)6 Apr 2018
- Calista Kina Gitobu v Teachers Service Commission [2018] KEELRC 2002 (KLR)[2018] KEELRC 2002 (KLR)6 Apr 2018distinguished
Cite this brief
#Cite this brief
Caselaw, "George Aseey v Mabati Rolling Mills Ltd [2014] KEELRC 426 (KLR)", Case Analysis (2014). Cause No 374 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/426/eng@2014-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.