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ELRCPartially AllowedCause No. 1666 of 2012· [2015] KEELRC 838 (KLR)

Mary Magero v Registered Trustees Windle Trust International – Kenya [2015] KEELRC 838 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
10 June 2015
3,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who stops an employee's salary without a termination letter or dismissal still owes wages, even where the employee misbehaved.

What this practically means

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Executive summary

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The Claimant, a graduate teacher employed by the Respondent NGO as Principal of Hagdera Secondary School at Daadab Refugee Camp, was evacuated from her work station on 17 October 2011 following death threats and a fatwa issued against her. She remained in communication with the Respondent, seeking redeployment to a safer station, but her salary was stopped from February 2012 without notice, warning or termination letter. She claimed accumulated salaries, notice pay, compensation for unfair dismissal and reinstatement/redeployment. The Respondent contended she absconded duty from 19 January 2012 and had constructively terminated her employment by taking up engagement with the Danish Refugee Council. The court found that although the Claimant's paid research engagement while on sick leave was a fundamental breach of her contract, the Respondent, with knowledge of the breach, never issued notice, a termination letter or summary dismissal under section 44 of the Employment Act, instead continuing negotiations until 14 May 2012. The employment relationship therefore subsisted; stopping her salary was an unfair labour practice tantamount to constructive dismissal. Salary was pegged at 14 May 2012, awarding Kshs.256,288.00 for 3 months and 14 days, plus notice pay of Kshs.73,208.00. Compensation and reinstatement/redeployment were refused. Judgment was entered for the Claimant with no orders as to costs.

Key legal issues

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01

Whether the Claimant was terminated or absconded duty

Holding

The Claimant effectively remained an employee; the Respondent, despite knowing of her breach, never issued notice, termination letter or summary dismissal, so stopping her salary amounted to constructive dismissal and her salary fell due.

Reasoning

The Claimant was evacuated for security reasons and kept communicating with the Respondent. Though she took up a research engagement with the Danish Refugee Council while on sick leave — a fundamental breach — the Respondent continued email negotiations and meetings until 14 May 2012 without invoking section 44 of the Employment Act or its own human resource manual. Failure to act on known misconduct amounted to tolerating it, leaving the employment relationship intact; the salary stoppage was therefore unjustified and constructive dismissal was made out.

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02

Whether compensation for unfair dismissal is due

Holding

Refused; the Claimant admitted taking other paid engagement and obtaining sick leave while so engaged, a fundamental breach, making compensation a double benefit.

Reasoning

Although the withholding of salary was an unfair labour practice tantamount to constructive dismissal, the Claimant's own conduct — entering a paid engagement with the Danish Refugee Council while claiming sick leave — constituted fundamental breach of her contract. In the court's discretion, awarding compensation on those facts would double her benefit, so the remedy was withheld.

p. 5
03

Quantum and period of salary due

Holding

Salary pegged at 14 May 2012, the date of the last meeting, calculated at Kshs.73,208.00 per month for 3 months and 14 days, totalling Kshs.256,288.00, plus one month's notice pay of Kshs.73,208.00.

Reasoning

The Respondent did not attach the contested minutes of the 14 May 2012 meeting and called no witness, so the court treated that date as the cut-off for the employment relationship. The last salary earned was Kshs.73,208.00, giving 3 months and 14 days' salary of Kshs.256,288.00. Notice of any misconduct not having been issued, one month's pay in lieu was due.

p. 5

Legal principles established

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  • Where an employer knows of an employee's breach but continues to engage the employee in negotiations without issuing notice, a termination letter or summary dismissal, the employee remains in employment and unpaid salary falls due.
  • Withholding an employee's salary without notice or termination letter constitutes an unfair labour practice amounting to constructive dismissal.
  • An employer aware of misconduct must invoke disciplinary measures or summary dismissal under section 44 of the Employment Act; inaction does not excuse non-payment of salary.

Court orders

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  1. 1.Judgment entered for the Claimant for salary due amounting to Kshs.256,288.00
  2. 2.Notice pay awarded at Kshs.73,208.00
  3. 3.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 44

Cases cited (4)

  • Benuel Mariera versus Awanad Enterprises Ltd
    (2014) eKLR
  • Augustine Peter Obirika versus Card Centre Limited
    (2012) eKLR
  • Attorney General versus Blake
    (1998) 2 WLR 805
  • Banking Insurance and Finance Union (Kenya) versus Barclays Bank of Kenya
    (2012) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause filed under the Employment Act)

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, "Mary Magero v Registered Trustees Windle Trust International – Kenya [2015] KEELRC 838 (KLR)", Case Analysis (2015). Cause No. 1666 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/838/eng@2015-06-02

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