Jalis Ayotabi Awiti v J.R.S Group Security Limited [2016] KEELRC 416 (KLR)
The bottom line
#A Kenyan court ruled a security guard was constructively dismissed because his employer changed his job without a hearing, awarding him Shs.451,264.90.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was constructively dismissed
The Respondent constructively dismissed the Claimant by unilaterally withdrawing him from guarding duties and transferring him to induct recruits without dealing with the drunkenness allegation
The Respondent bore the burden of proving desertion or drunkenness but failed to produce the OB, call the Manager, or avail records as required by sections 10 and 74 of the Employment Act. Its failure to disprove the Claimant's account of reporting to the office for eight days meant the court had to find for the Claimant, applying the constructive dismissal principles in Western Excavating v Sharp as adopted by the Court of Appeal.
Entitlement to remedies
One month's pay in lieu of notice at statutory minimum rates, leave dues for 147 days, and underpayments awarded; severance pay refused
The court assessed notice pay at the statutory minimum wage for a night watchman plus 15% house allowance. The Respondent did not deny the Claimant never took leave, and 21 days per year over 7 years at the General Order daily rate was awarded. Underpayment calculations were unchallenged. Severance was unavailable because the Claimant was not declared redundant.
Legal principles established
#- Where the employer unilaterally assigns an employee new duties, that amounts to a significant breach going to the root of the employment contract entitling the employee to treat himself as discharged - constructive dismissal
- Where an employer fails to produce prescribed employment records, the burden of proving an alleged term of employment shifts to the employer
- The burden of justifying the grounds for termination rests on the employer
Court orders
#- 1.Declaration that the Respondent constructively dismissed the Claimant from employment
- 2.One month's salary in lieu of notice at Shs.12,548.50
- 3.Leave dues of Shs.89,640.60
- 4.Underpayments of Shs.349,075.80
- 5.Total award of Shs.451,264.90 to be paid by the Respondent to the Claimant
- 6.Respondent to pay Claimant's costs of the suit
- 7.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jalis Ayotabi Awiti v J.R.S Group Security Limited [2016] KEELRC 416 (KLR)", Case Analysis (2016). Cause No. 26 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/416/eng@2016-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.