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ELRCDismissedEmployment Cause filed 8th July 2015 (number not disclosed in judgment)· [2016] KEELRC 315 (KLR)

Fredrick Ochieng Ndubi v Board of Management,Moi Girls High School [2016] KEELRC 315 (KLR)

Employment and Labour Relations Court
14 November 2016
DMD.K. Njagi Marete
823 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan cook lost a Kshs.3 million unfair termination claim because the court found his suspension letter was not a dismissal — proof of termination is on the employee.

What this practically means

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Executive summary

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The claimant, employed as a cook by the respondent from 2003, brought a Memorandum of Claim dated 8th July 2015 alleging that his employment was terminated on 10th December 2012 by a letter described as a suspension, in breach of Section 40 of the Employment Act, 2007. He sought one month's pay in lieu of notice, eleven years of unpaid leave dues, severance pay, unpaid public holidays, lost earnings up to retirement, and compensation for unfair termination, totaling Kshs.3,009,428.33. The respondent denied any termination, asserting the claimant was only suspended following criminal charges in Eldoret Cr.C. No.5080 of 2012, with a decision on his employment to be made upon finalisation of that trial, and prayed for dismissal with costs. The parties agreed to dispose of the cause by written submissions. The court framed four issues: whether there was a termination; whether it was unfair; entitlement to relief; and costs. It preferred the respondent's account, holding that the claimant had not demonstrated actual or constructive termination and remained on suspension with room to resolve his employment issues with the respondent. The remaining issues fell away. The claim was dismissed with no order as to costs, each party bearing its own costs.

Key legal issues

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01

Whether the letter of suspension dated 10th December 2012 amounted to termination of employment

Holding

The court found no termination; the claimant remains on suspension pending the outcome of criminal proceedings, and the suspension does not constitute dismissal or constructive termination.

Reasoning

The respondent asserted that the claimant was only suspended pending a decision after the conclusion of Eldoret Cr.C. No.5080 of 2012, and the claimant had not notified the respondent of the outcome. The court found the respondent's account more probable, holding that the claimant had not demonstrated actual or constructive termination and could still resolve his employment issues with the respondent. Consequently, claims premised on unfair termination under Section 40 of the Employment Act failed.

p. 3

Legal principles established

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  • A claimant who alleges termination of employment bears the burden of demonstrating such termination, including constructive termination, before relief under the Employment Act can attach.

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs of the claim

Authorities

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Legislation

  • Employment ActSection 40
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (cause of employment relations)

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, "Fredrick Ochieng Ndubi v Board of Management,Moi Girls High School [2016] KEELRC 315 (KLR)", Case Analysis (2016). Employment Cause filed 8th July 2015 (number not disclosed in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/315/eng@2016-11-14

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