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ELRCDismissedNot stated in judgment extract· [2016] KEELRC 910 (KLR)

Johnson Simiyu Litema v Logos Christian School [2016] KEELRC 910 (KLR)

Industrial Court (Employment and Labour Relations Court)
28 June 2016
NMNzioki wa Makau
3,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a driver's constructive dismissal claim, ruling that a messy disciplinary process is not the same as firing someone.

What this practically means

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Executive summary

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The Claimant, a school bus driver employed by the Respondent from 1st July 2007, sued for unlawful termination and breach of contract, seeking damages of Kshs. 267,774/-, 12 months' salary compensation of Kshs. 247,176/-, an account of statutory deductions, severance pay, costs and interest. He alleged that on 18th October 2010 he was denied entry to the school, faced verbal accusations of hiring out the school bus for unauthorised trips to Nakuru, and was told his termination stood. The Respondent denied terminating him, asserting that he had twice taken the bus without authorisation, admitted as much in meetings, and had been placed on two months' unpaid compulsory leave with instructions to explain himself in writing; it maintained he remained an employee. The Claimant testified he was barred from the premises and never given written allegations to respond to; the Respondent's three witnesses denied any dismissal. The court, applying the Claimant's cited authority on constructive dismissal, examined whether the demand for a statement, the compulsory unpaid leave, and the denial of access amounted to constructive dismissal. It found the conditions at work were not so grave as to infer dismissal, that no termination took place, and that the Claimant left of his own volition, rendering the suit a non-starter. The suit was dismissed, but in recognition of the Respondent's poor disciplinary process, each party was ordered to bear their own costs. Judgment delivered at Nairobi on 28th June 2016 by Nzioki wa Makau J.

Key legal issues

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01

Whether constructive dismissal was established

Holding

The court held that the conditions at work were not so grave as to infer dismissal; the Claimant was being taken through a disciplinary process that was not seamless but was not dismissed

Reasoning

The court examined each element of the Claimant's complaint separately: the request for a statement, the two months unpaid compulsory leave, and the denial of access to the premises. It found that the request for an explanation alone could not infer constructive dismissal; the Claimant had not actually proceeded on the compulsory leave, so he could not demonstrate unbearable conditions; and denial of access on two occasions was not, on its own, constructive dismissal. The Respondent maintained throughout that the Claimant remained its employee.

p. 5
02

Whether termination took place

Holding

No termination took place; the Claimant left of his own volition

Reasoning

The Respondent's officials testified that the Claimant was never dismissed, and the Respondent insisted at the time of filing suit that the Claimant was still its employee. The court found the disciplinary process was poorly handled but concluded the Claimant was not dismissed, meaning his suit seeking compensation for termination was a non-starter.

p. 5

Legal principles established

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  • A request for a statement or explanation from an employee, standing alone, is insufficient to infer constructive dismissal
  • Constructive dismissal requires working conditions so intolerable that the employee feels compelled to leave

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActNot specified

Cases cited (1)

  • Kenneth Kimani Mburu & Another v Kibe Muigai Holdings Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (implied; no express provision cited)

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, "Johnson Simiyu Litema v Logos Christian School [2016] KEELRC 910 (KLR)", Case Analysis (2016). Not stated in judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/910/eng@2016-06-28

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