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ELRCPartially AllowedNot stated in judgment· [2017] KEELRC 1723 (KLR)

Jackson Gona Konde v Ayoob Noor Mohammed & Company Limited [2017] KEELRC 1723 (KLR)

Employment and Labour Relations Court
24 February 2017
JRJames Rika
2,952 words in judgment
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The bottom line

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A Kenyan court ruled that pressuring an employee to resign, rather than following proper dismissal procedures, makes termination unfair even when there was a valid reason.

What this practically means

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Executive summary

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The Claimant, employed as a Turn Boy and later Heavy Commercial Driver, claimed his contract was unfairly and unlawfully terminated on 7th June 2014, seeking notice pay, accrued annual leave, 12 months' compensation, travelling allowance, costs and a certificate of service. The Respondent contended the Claimant voluntarily resigned after unauthorized absence from work on 23rd to 25th May 2014 and insubordination, and counterclaimed for one month's salary in lieu of notice for resignation without notice. The Court found the purported resignation letter was drafted by the Respondent's Accountant and never signed by the Claimant, and the audio recording captured an angry director pressuring the Claimant to resign rather than any voluntary resignation. Although the Claimant's absence without leave was a valid ground constituting an offence under Section 44(4)(a) of the Employment Act 2007, the procedure was fundamentally flawed: the warning letter doubling as a show-cause letter was never followed by a disciplinary hearing, salary was withheld to coerce resignation, and the Claimant effectively faced three punishments for one offence. Termination was therefore unfair. The Court awarded four months' salary as compensation (Kshs. 101,568), one month's notice pay (Kshs. 25,392) and annual leave pay of Kshs. 90,575, totalling Kshs. 217,535, and ordered release of the certificate of service. The travelling allowance claim was rejected for lack of evidential or contractual basis, and the Counterclaim was dismissed. There was no order as to costs. Judgment delivered at Mombasa on 24th February 2017 by James Rika, Judge.

Key legal issues

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01

Whether the Claimant resigned voluntarily or was unfairly terminated

Holding

Termination was unfair; the resignation was not voluntary

Reasoning

The resignation letter was drafted by the Respondent's Accountant and not signed by the Claimant. The audio recording showed an angry director pressuring the Claimant to sign a resignation letter, with no expression of a desire to resign. The Court found the meeting was solely to pressure the Claimant into resigning.

p. 4
02

Whether the termination procedure complied with Sections 41, 43 and 45 of the Employment Act

Holding

Procedure was fundamentally flawed despite valid ground

Reasoning

The Claimant was absent without leave, an offence under Section 44(4)(a), and was warned and had salary deducted. However, the warning letter doubling as a show-cause letter was not followed by any disciplinary hearing; the recorded meeting was solely to pressure resignation, and salary was withheld to coerce signing of the resignation letter.

p. 5
03

Entitlement to notice pay, annual leave pay and certificate of service

Holding

Notice pay of one month and annual leave pay awarded; certificate of service to issue under Section 51

Reasoning

The Respondent issued no notice or notice pay. On annual leave, the Respondent gave no records of utilization or payment in lieu, only general policy statements, so the claim was allowed at 21 days per year for 4 years plus pro-rata. The certificate of service is a statutory entitlement.

p. 5

Legal principles established

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  • An employer may have valid ground for termination but unfair termination results where the procedure under Sections 41, 43 and 45 of the Employment Act is not followed
  • Salaries and wages are protected under Part IV of the Employment Act and must be paid promptly when due
  • A resignation must be shown to be voluntary; a resignation letter drawn by the employer and not signed by the employee does not prove voluntary resignation

Court orders

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  1. 1.Declaration that termination was unfair and unlawful
  2. 2.Respondent to pay equivalent of 4 months' salary in compensation for unfair termination at Kshs. 101,568
  3. 3.Respondent to pay 1 month salary in lieu of notice at Kshs. 25,392
  4. 4.Respondent to pay annual leave pay at Kshs. 90,575
  5. 5.Total award of Kshs. 217,535
  6. 6.Respondent to release to the Claimant his Certificate of Service forthwith
  7. 7.Counterclaim rejected
  8. 8.No order on costs

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45
  • Employment Act 2007Section 44[4][a]
  • Employment Act 2007Part IV
  • Employment Act 2007Section 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jackson Gona Konde v Ayoob Noor Mohammed & Company Limited [2017] KEELRC 1723 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1723/eng@2017-02-24

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