Mary Magero v Registered Trustees Windle Trust International – Kenya [2015] KEELRC 838 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was terminated or absconded duty
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.
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.
Whether compensation for unfair dismissal is due
Refused; the Claimant admitted taking other paid engagement and obtaining sick leave while so engaged, a fundamental breach, making compensation a double benefit.
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.
Quantum and period of salary due
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.
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Claimant for salary due amounting to Kshs.256,288.00
- 2.Notice pay awarded at Kshs.73,208.00
- 3.No orders as to costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause filed under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.