Alice Mbithe Mwanzia v Xpress It Courier Limited [2016] KEELRC 449 (KLR)
The bottom line
#A Kenyan employer who cut an employee's salary and hours without written agreement lost and paid nearly Kshs 1 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
The Respondent's unilateral reduction of salary and working hours rendered the employment environment intolerable, amounting to constructive dismissal
The court traced the doctrine of constructive dismissal from comparative authorities (Ndebele v Foor Warehouse; Pretoria Society for the Care of the Retarded v Loots) and Kenyan decisions. It found the employer varied fundamental contract terms without consultation contrary to Section 10(5) of the Employment Act, and that this conduct was aimed at forcing the Claimant out. The Claimant's departure was therefore in response to the employer's repudiatory conduct, not voluntary desertion.
Whether there were valid reasons for the dismissal
There were no valid reasons; the Respondent assigned none for the dismissal
The Respondent did not assign any reasons to the dismissal. Even if underperformance were alleged, Section 10(5) of the Employment Act makes it mandatory for an employer to vary contract terms after consultation with the employee. No consultation took place, and the variation was in the court's view designed to push the Claimant out of employment.
Whether due process was followed
Due process was not followed; no consultation preceded the variation of contract terms
The court held that even if the employer genuinely believed the Claimant was underperforming, the law required consultation and written notification before varying contractual terms. Neither occurred. The unilateral reduction of salary from 40,000 to 30,000 and later to 15,000, and reduction of working hours, breached the statutory requirement and constituted unfair treatment of the Claimant.
Whether the Claimant's acceptance of the reduced salary amounted to waiver
The Respondent's assertion that the Claimant accepted the salary reduction was untrue as no written variation existed
The Respondent claimed the salary reduction to 30,000 was accepted by the Claimant, but did not exhibit any written acceptance. Under Section 10(5) of the Employment Act, any change to matters stipulated in the contract requires revision of the contract in consultation with the employee and written notification. Absent written change, the alleged acceptance was an illegality and no waiver could arise.
Legal principles established
#- A unilateral variation of fundamental terms of an employment contract without consultation and written notice to the employee is an illegality and may constitute constructive dismissal
Court orders
#- 1.3 months' salary in lieu of notice being 40,000 x 3 as per employment contract Clause 13.2.1 = 120,000/-
- 2.Unpaid salary for January, February and March 2013 = 120,000/-
- 3.Arrears of salary of February 2011 to December 2012 = 220,000/-
- 4.Leave days owing 31 days = 41,333/-
- 5.12 months' salary as compensation for unlawful dismissal = 12 x 40,000 = 480,000/-
- 6.Total award of 981,333/- plus costs
- 7.Issuance of Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 10(5), 35, 41, 44(4), 45) and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Susan Waitherero Rukungu v Boniface Kamau & another [2018] KEELRC 747 (KLR)[2018] KEELRC 747 (KLR)31 Oct 2018
- Susan Waitherero Rukungu v Boniface Kamau & another [2018] KEELRC 747 (KLR)[2018] KEELRC 747 (KLR)31 Oct 2018distinguished
Cite this brief
#Cite this brief
Caselaw, "Alice Mbithe Mwanzia v Xpress It Courier Limited [2016] KEELRC 449 (KLR)", Case Analysis (2016). Cause No. (Memorandum of Claim dated 26th April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/449/eng@2016-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.