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ELRCDismissedCause Number 885 of 2011· [2014] KEELRC 704 (KLR)

Lillian Atieno Ondigo v Ultimate Spa and Beauty Parlour [2014] KEELRC 704 (KLR)

Industrial Court at Nairobi
16 January 2014
JRJames Rika
1,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Industrial Court dismissed a hair braider's unfair termination claim because she resigned voluntarily rather than being sacked by her employer.

What this practically means

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Executive summary

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The Claimant, appearing in person, sued the Respondent beauty parlour for unfair and unlawful termination of her employment as a Hair Braider, engaged on 21st July 2010 at a basic salary of Kshs. 15,000 plus 50% commission of monthly collections. She sought reinstatement without loss of benefits, salaries and allowances for the period out of employment, terminal benefits, compensation equivalent of 3 months' salary for unfair termination, a certificate of service, costs and interest, claiming Kshs. 60,000 among other prayers. The Respondent, through its Accountant/Manager Anne Wangare Ndung'u, denied terminating the contract, asserting that the salary-plus-commission arrangement was a grace period to allow the Claimant build a clientele base, extended by five months to February 2011, after which she was to move to exclusive commission agency. She found the proposal unattractive and left voluntarily, later agreeing in May 2011 to be paid Kshs. 5,550 for six days worked in March 2011. The Court found the Respondent's evidence credible and the Claimant's evidence shaky, inconsistent and untruthful, noting she had demanded only Kshs. 35,000 in her April 2011 demand letter and altered her claim to Kshs. 60,000. It held she left of her own volition and had no reason to seek reinstatement, notice pay or compensation. IT IS HEREBY ORDERED that the Claim be rejected in its totality with no order on the costs.

Key legal issues

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Whether the Claimant's employment was unfairly and unlawfully terminated

Holding

The Claim failed; the Claimant left voluntarily after rejecting a switch to exclusive commission agency, and received her March 2011 dues.

Reasoning

The Court found the Respondent's evidence credible and the Claimant's evidence shaky, inconsistent and not truthful. The Claimant was engaged as a Braider on salary plus commission to accommodate her lack of clientele base, and was given an extended grace period. She left after finding the exclusive commission proposal unattractive, negotiated and received payment for 6 days worked in March 2011 in the presence of a witness, and only thereafter brought a multiplicity of inconsistent claims.

p. 2

Legal principles established

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  • A claimant alleging unfair termination bears the burden of showing the contract was terminated at the instance of the employer; an employee who leaves of her own volition after rejecting a proposed change in terms is not entitled to reinstatement, notice pay or compensation.

Court orders

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  1. 1.The Claim is hereby rejected in its totality with no order on the costs.
Jurisdiction invoked
Reference not stated in the judgment (Industrial Court, Cause Number 885 of 2011, unfair and unlawful termination dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lillian Atieno Ondigo v Ultimate Spa and Beauty Parlour [2014] KEELRC 704 (KLR)", Case Analysis (2014). Cause Number 885 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/704/eng@2014-01-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.