Pooroosotum Bheekhoo v Linksoft Group [2015] KEELRC 191 (KLR)

The court examined the contract drawn under the banner of Linksoft Group, the work permit, school fees invoices and communications all issued under Linksoft Group. The respondent's own witness confirmed the group structure with multiple entities. Separating the Respondent from the contracting entity to deny responsibility would amount to an unfair labour practice. Section 13 of the Employment Act places the duty to effect changes in contract particulars on the employer, not the employee.

Once an employee is confirmed after probation, the employer is taken to have assessed and appreciated the employee's competence. An employer alleging poor performance must prove it, showing standards, support and time to improve. Here there was no record of assessment by the CEO, no warnings, and no written KPIs after the role change. The witness admitted external factors caused losses and could not attribute them to the claimant. Varying contract terms to deny variable pay on poor performance and low finances was unacceptable.

The claimant gave 3 months' notice ending 31st December 2012 per his contract. The respondent's letter of 1st November 2012 asserting an earlier exit was not acknowledged by the claimant. Where an essential term changes, mutual written consent is required under section 13 of the Employment Act. The mistake of failing to reduce any agreement into writing should not be visited upon the claimant; he offered to serve his notice and should be paid for it.

The contract provided company house and children's education as open benefits with no conditions. No policy limiting school fees was attached to the contract or brought to the claimant's attention. Rent paid by the claimant in cash or personal effects should be reimbursed. However, the court found from the claimant's own annexures that school fees were fully paid by 25th September 2013, so awarding $19,179 would be double payment, though costs were awarded due to the delay in payment.

The respondent admitted owing salaries and retained the dues while blaming the claimant for poor performance, which the court found to be an unfair labour practice. The offer to pay in instalments was rejected and the respondent sat back and waited, frustrating the former employee. The claimant was paid by direct bank deposit in USD, and since he left Kenya with his work permit cancelled, the dues were to be paid in United States Dollars.

Though the claimant testified he was forced to resign and suffered moral damage including his father's death, these heads were not in the memorandum of claim. The court noted the absence of the omnibus prayer under section 12(3)(viii) of the Employment and Labour Relations Court Act which would have invited the court's discretion. The court applied authorities on the fatal effect of unpleaded claims.