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ELRCPartially AllowedCause No. 1519 of 2014 (Consolidated with Cause No. 1518 of 2014)· [2015] KEELRC 1556 (KLR)

Max Masoud Roshankar & another v Sky Aero Limited [2015] KEELRC 1556 (KLR)

Industrial Court of Kenya
22 January 2015
MMM. Mbaru
12,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that two Sky Aero employees were unfairly dismissed, with no resignation letter meaning the employer lost and paid maximum compensation.

What this practically means

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Executive summary

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The Industrial Court at Nairobi, M. Mbaru J, consolidated Cause No. 1519 of 2014 (Max Masoud Roshankar) with Cause No. 1518 of 2014 (Mariana Onica) against Sky Aero Limited under Rule 9 of the Industrial Court (Procedure) Rules. Both claimants, foreign nationals employed as a pilot and an aircraft maintenance planning engineer respectively, alleged constructive and unfair termination, non-payment of salaries and dues, and failure by the respondent to procure work permits. The respondent filed a defence only in Roshankar's cause, asserting he resigned after misconduct including moonlighting; Onica's claim was undefended. Framing three issues - termination/resignation/constructive dismissal, discrimination, and remedies - the court found that Roshankar resigned because the employer's failure to secure his work permit, non-payment of salary, terminated accommodation and ignored safety concerns made employment intolerable, and by accepting the resignation the respondent evaded due process, amounting to constructive and unfair dismissal. Onica's alleged resignation was unsupported by any written resignation letter; her termination without notice was unfair. Discrimination claims failed for lack of clear evidence of differential treatment. Applying sections 43, 45 and 49 of the Employment Act, the court declared both claimants constructively and unfairly terminated, awarded contractual dues, notice, leave, gratuity, service pay, general damages for inhuman and degrading treatment, and maximum 12 months' gross salary compensation, with costs to the claimants. Claims for freelance deductions and lapsed interim subsistence allowances were declined.

Key legal issues

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01

Whether Max Masoud Roshankar was constructively dismissed

Holding

The court found constructive dismissal; the employer created conditions (failure to procure a work permit, non-payment of salaries, terminated accommodation, unaddressed safety concerns) rendering the employment intolerable, and by accepting the resignation avoided due process

Reasoning

The claimant tendered three months' notice after the respondent failed to secure his work permit, failed to pay salaries, and ignored written safety concerns. The respondent acknowledged the resignation but terminated on the spot for removal from the duty roster instead of instituting disciplinary process. Had the employer addressed the concerns, the employee would have remained in employment. This breached the implied term of trust and confidence and constituted an unfair labour practice under Article 41 of the Constitution and unfair termination under section 45 of the Employment Act.

p. 15
02

Whether Mariana Onica resigned or was unfairly terminated

Holding

The court found she was unfairly terminated without notice and without due process; no letter of resignation existed on record

Reasoning

The respondent relied on an alleged resignation of 15th August 2014 but produced no resignation letter, and the email exchange showed conditions (payment of dues, work permit) that the respondent never met. She had been replaced, her accommodation terminated and dues unpaid before termination, leaving her destitute. Under section 43 of the Employment Act the employer failed to prove the reason for termination, so the termination was unfair.

p. 15
03

Whether the claimants were discriminated against

Holding

No discrimination was established on the evidence; both claimants failed to outline clear, unambiguous circumstances of differential treatment

Reasoning

Relying on the test that differential treatment of persons similarly situated amounts to discrimination, the court found the claimant Roshankar did not substantiate his computations of freelance deductions or the comparison with other pilots, and Onica's replacement at a higher salary reflected contractual negotiation rather than discrimination. Parties are free to negotiate differing terms.

p. 17
04

Remedies payable to the claimants

Holding

The court awarded contractual dues, service pay, notice and leave pay, general damages for inhuman and degrading treatment amounting to torture, and the maximum 12 months' gross salary compensation for unfair termination

Reasoning

Relying on section 12 of the Industrial Court Act and sections 35, 43, 45 and 49 of the Employment Act, the court used the contractually agreed salaries ($4,500 for Roshankar, $4,000 for Onica after increment), awarded 15 days' pay per year as service pay where statutory deductions were not remitted, general damages ($30,000 and $20,000) for the inhuman and degrading treatment inflicted before and after termination, and 12 months' gross salary as maximum compensation under section 49. Claims for freelance deductions and lapsed subsistence allowances were declined.

p. 19

Legal principles established

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  • In any claim arising out of termination of a contract, the employer must prove the reason or reasons for the termination, failing which the termination is deemed unfair under section 45 of the Employment Act
  • An employee's initiation of a complaint or legal proceedings against the employer does not constitute a fair reason for dismissal
  • Constructive dismissal arises where employer conduct renders continuation of the employment relationship intolerable, and the employee bears the burden of proving the intolerable conditions
  • A resignation must be in writing; termination of employment in the mistaken belief that an employee resigned is unfair termination without due process
  • A person treated differently from others similarly situated is discriminated against; unfairness is presumed on specified grounds but must be established on unspecified grounds
  • Where statutory dues are not remitted, the employer is responsible and service pay is due at 15 days' pay for each year worked

Court orders

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  1. 1.A declaration that the claimants were constructively terminated from their employment by the respondent
  2. 2.A declaration that the claimants were unfairly terminated
  3. 3.General damages of $30,000 (Kshs.2,724,666.00) to Max Mansoud Roshankar
  4. 4.Compensation of $54,000 (Kshs.4,904,398.80) to Max Mansoud Roshankar
  5. 5.Notice pay of $13,500; leave pay of $4,500; gratuity of $2,250; salary due April to June 2014 of $13,500; per diem unpaid of $3,200; service pay of $2,250; rebated tickets of $4,500; and mileage allowance of Kshs.1,440.00 for Max Mansoud Roshankar
  6. 6.General damages of $20,000 (Kshs.1,816,444.00) to Mariana Onica
  7. 7.Compensation of $48,000 (Kshs.4,359,465.60) to Mariana Onica
  8. 8.Notice pay of $4,000; salary arrears of $10,000; service pay of $2,000; leave pay of $6,000; and visa and dinner expenses of $350 for Mariana Onica
  9. 9.Claimants awarded costs of the suit
  10. 10.Amounts payable to be less what the claimants have received in settlement of their terminal dues and not inclusive of the provisional allowances awarded on 9th September 2014

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 28, 10(1)(b)
  • Employment Act, 2007sections 5(1) & (2), 35, 43, 44, 45, 46(h), 47, 49
  • Industrial Court Actsection 3; section 12 (at section 3(viii))
  • Industrial Court (Procedure) RulesRule 9
  • Civil Procedure Rulesreferred to generally on practice of appearance

Cases cited (7)

  • Emmanuel Mutisya Solomon versus Agility Logistics
    Cause No.1448 of 2011
  • Pretoria Society for the Care of the Retarded v Loots
    [1997] 6 BLLR 721 (LAC)
  • Maria Kagai Ligaga versus Coca Cola East and Central Africa Limited
    Cause No. 611 (N) of 2009
  • Marete versus Attorney General
    [1987] KLR 690
  • Mohazbad versus Dick Smith Electronics
    [1995] IRCA 272
  • Collins Osoro Lukhele versus AAA Growers Limited
    Cause No. 100 of 2012
  • Hesbon Ngaruiya Waigi versus Equatorial Commercial Bank Limited
    Cause No. 60 of 2013
Jurisdiction invoked
Industrial Court Act (including section 12 and section 3) and Article 41 of the Constitution of Kenya, 2010; Industrial Court (Procedure) Rules Rule 9

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Max Masoud Roshankar & another v Sky Aero Limited [2015] KEELRC 1556 (KLR)", Case Analysis (2015). Cause No. 1519 of 2014 (Consolidated with Cause No. 1518 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1556/eng@2015-01-22

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