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ELRCPartially AllowedCause No. 2041 of 2014· [2016] KEELRC 1858 (KLR)

Joseph Matiti Maema & 3 others v Kabiro Builders Limited [2016] KEELRC 1858 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
31 May 2016
2,185 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 ruled that workers forced to resign under pressure were constructively dismissed and won compensation because their employer kept no employment records.

What this practically means

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Executive summary

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Four claimants sued Kabiro Builders Limited for constructive dismissal and terminal dues after their employment ended in June 2014. They alleged that the owner, facing closure of the business, summoned them and coerced them into writing resignation letters on pain of losing their benefits; the 2nd Claimant's letter giving one month's notice was torn up and replaced with a dictated letter. The Respondent, though served, did not attend the hearing and called no evidence, admitting employment but asserting the resignations were voluntary and all dues paid. The court held that an employer must keep and produce employment records; the Respondent's bare general denials left the claims uncontroverted. Applying Emmanuel Mutisya Solomon v Agility Logistics and Max Masoud Roshankar v Sky Aero Limited, the court found the mass resignations were not voluntary and that the Claimants were constructively dismissed, amounting to unfair termination under section 45 of the Employment Act. Each Claimant was awarded compensation of three months' gross salary, one month's notice pay, June 2014 salary, leave balance, off duty pay, house allowance and overtime as tabulated, with underpayment disallowed for want of proof. Certificates of Service were ordered under section 51, with costs to the Claimants.

Key legal issues

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01

Constructive dismissal

Holding

The Claimants were constructively dismissed, amounting to unfair termination under section 45 of the Employment Act

Reasoning

The Claimants were summoned and forced to resign under threat of losing their terminal dues. The 2nd Claimant's resignation letter giving one month notice was torn up and replaced with a dictated letter. Similar letters were forced on all Claimants. With the Respondent producing no evidence to controvert this, the court accepted the claims, found the resignations involuntary, and held that intolerable conditions forced the employees out.

p. 5
02

Burden of production of employment records

Holding

Where an employer fails to produce employment records or call evidence, the Claimants' unchallenged claims are accepted

Reasoning

The Respondent admitted employment but offered only general denials, producing no contracts, payslips or leave records and calling no evidence. The court held that once a claimant challenges leave, off days and payment records, the employer must produce them. Failing that, the claims of notice pay, leave, off days, house allowance and overtime are awarded as pleaded.

p. 4
03

Remedies for unfair termination

Holding

Compensation of three months' gross salary and one month's notice pay are due on a finding of unfair termination

Reasoning

On finding unfair termination under section 45, the court awarded each Claimant compensation at three months' salary based on last gross pay and notice pay for one month, absent any record of such payment. Leave, off days, house allowance and overtime, unchallenged by any evidence, were awarded as pleaded, and Certificates of Service ordered under section 51 of the Employment Act.

p. 5

Legal principles established

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  • Constructive dismissal arises where the employer creates workplace conditions that render continued employment intolerable, entitling the employee to treat themselves as wrongfully dismissed
  • An employer is obliged to keep employment records; where claims such as leave and off days are challenged and the employer produces no records or evidence, the claims stand uncontroverted
  • Mass resignations procured by employer pressure are not voluntary and amount to constructive termination

Court orders

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  1. 1.A declaration that the Claimants were constructively dismissed
  2. 2.Compensation awarded at 3 months gross salary to each Claimant
  3. 3.Notice pay for one month's salary to each Claimant
  4. 4.Payment to each Claimant of June 2014 salary, leave balance, off duty pay, house allowance and overtime as tabulated
  5. 5.The Claimants to be issued with Certificates of Service in terms of section 51 of the Employment Act
  6. 6.Costs of the suit to the Claimants

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 51
  • Court procedure RulesRule 4

Cases cited (4)

  • Emmanuel Mutisya Solomon versus Agility Logistics
    Cause No.1448 of 2011
  • Max Masoud Roshankar versus Sky Aero Limited
    Cause No.1519 of 2014 consolidated with Cause No.1518 of 2014
  • Mariana Onica versus Sky Aero Limited
    Cause no.1518 of 2014
  • Augustine peter Obirika versus Card Centre Limited
    Cause no.677 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Court procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Matiti Maema & 3 others v Kabiro Builders Limited [2016] KEELRC 1858 (KLR)", Case Analysis (2016). Cause No. 2041 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1858/eng@2016-05-31

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