Joseph Aleper & another v Lodwar Water and Sanitation Company Limited [2015] KEELRC 613 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employer who suspends, audits, and sidelines employees without cause constructively fired them, awarding over Kshs 1.4 million.
What this practically means
#Executive summary
#Key legal issues
#Whether there was constructive termination of the claimants' employment
Yes - the court found constructive termination of both claimants' contracts
The court applied the contract test from Western Excavating v Sharp and the two facets of constructive dismissal: unilateral alteration of the contract (advertising the claimants' jobs under different titles with higher qualifications locking them out) and making working conditions intolerable (suspension, audit, denial of duties and remuneration). The claimants were not responsible for their circumstances; the employer's misconduct rendered them unemployed.
Whether the claimants are entitled to the relief sought
Partially - gratuity and 4 months' compensation awarded; salaries to end of contract and notice pay refused
Having established constructive termination, relief followed, but because the claimants were paid salaries to the end of their contract terms pursuant to court orders, they could not recover those salaries, and notice pay was not feasible. The court instead awarded gratuity and a reduced compensation of four months' salary to each claimant.
Whether the respondent's counter-claim succeeds
No - the counter-claim was dismissed
The respondent disowned the 2nd claimant's promotion to Commercial/Finance and Human Resource Manager as unauthorized. However, the anomalous appointment continued unchallenged from January 2012 until the suspension, and the 1st claimant testified the appointment was approved by the Board with the chairman signing the letter. On a balance of probability, acquiescence by the respondent was probable, defeating the counter-claim.
Legal principles established
#- Constructive dismissal, though not statutorily backed in Kenya, applies through the doctrine of discharge by breach where the employer's conduct is a significant breach going to the root of the contract, aided by the constitutional right to fair labour practices under Article 41
- Suspension, audit of operations, denial of duties and cessation of remuneration that render an employee unemployed without the employee's fault amount to constructive termination
Court orders
#- 1.Award to the 1st Claimant of gratuity of Kshs. 446,000.00 and 4 months' compensation for unlawful termination of employment (4 x Kshs. 86,000.00 = Kshs. 344,000.00), totalling Kshs. 770,000.00
- 2.Award to the 2nd Claimant of gratuity of Kshs. 372,000.00 and 4 months' compensation for unlawful termination of employment (4 x Kshs. 72,000.00 = Kshs. 288,000.00), totalling Kshs. 660,000.00
- 3.The respondent to bear the costs of the cause
- 4.Dismissal of the respondent's counter-claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations disputes), invoked by Statement of Claim and Notice of Motion filed with a Certificate of Urgency
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.
- Eunice Shamia Lumallas v Parliamentary Service Commission & another [2021] KEELRC 1607 (KLR)[2021] KEELRC 1607 (KLR)20 Jan 2021
Cite this brief
#Cite this brief
Caselaw, "Joseph Aleper & another v Lodwar Water and Sanitation Company Limited [2015] KEELRC 613 (KLR)", Case Analysis (2015). Cause No. 203 of 2012 (inferred from Statement of Claim filed 15th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/613/eng@2015-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.