Stephen Musyoka Katiku v Orbit Enterprises Limited [2016] KEELRC 2 (KLR)
The bottom line
#A Kenyan court awarded a dismissed worker only one month's notice pay, ruling that ambiguous letters cannot be treated as resignations and unpaid compensation for misconduct.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was absent from work on 15th May 2013
The court found the claimant absent because his job card was not signed by the two officers (Harish and Hajit) required to confirm attendance; attendance is the employee's own duty.
The claimant's own testimony established that his job card had to be signed by two officers, Harish and Hajit, to confirm attendance, but only Harish signed. The court held that confirmation of attendance rests on the job card logging and approval, a duty on the employee at all material times. Where the card is not signed as required, the employee is taken to be absent, and the failure cannot be visited on the employer.
Whether the letter of 21st May 2013 amounted to a resignation
The court declined to treat the letter as a valid resignation because it was ambiguous, merely demanded service pay, and was not accepted by the respondent; the respondent should have addressed the absence issue procedurally.
The letter produced by the respondent merely requested payment of service dues citing miscommunication, without addressing termination. The claimant insisted his intention was not to resign. The court found the circumstances hazy and ambiguous, noted the supposed resignation was not accepted by the respondent, and held the employer should have called the claimant to explain himself rather than sit back and treat the letter as a resignation, thereby encouraging the filing of the suit.
Whether the claimant deserved reinstatement or compensation
Reinstatement was declined as not an exceptional case and given the claimant's poor disciplinary history; compensation was declined because his failure to explain his absence in writing as directed was a serious offence under section 44(4) of the Employment Act.
Under section 45(5) of the Employment Act the court must consider circumstances and past disciplinary history; the respondent produced a warning for absenteeism. Absence from work without authorisation warrants summary dismissal under section 44(4). Instead of explaining his whereabouts on 15th May 2013 as twice directed in writing, the claimant demanded service pay, which the court equated with gross misconduct not deserving compensation.
Whether notice pay was due
Notice pay of one month's salary was due under section 35 of the Employment Act, since there was no acceptance of the alleged resignation and the contractual notice clause fell below the legal minimum.
The respondent's witness testified that terminal dues were paid but did not set out what those dues were. Noting there was no acceptance of the alleged resignation, the court found notice pay due at one month's salary under section 35 of the Employment Act, overriding clause 4 of the employment contract which set a notice period below the statutory minimum. This informed the award of Kshs.13,995.00.
Legal principles established
#- Work attendance and ensuring the job card is signed as required is the duty of the employee, not the employer
- Where an employee's response is ambiguous and does not directly amount to a resignation, an employer should not simply treat it as a resignation but should call the employee to explain or address the issue procedurally
- An employer must explain all processes and procedures required at work in a language the employee can understand, per section 41 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant for the payment of Kshs.13,995.00 being basic pay inclusive of house allowance due
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Musyoka Katiku v Orbit Enterprises Limited [2016] KEELRC 2 (KLR)", Case Analysis (2016). Cause No. 1490 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/2/eng@2016-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.