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ELRCOtherNot stated in the excerpt (Statement of Claim dated 22nd September 2014)· [2017] KEELRC 1810 (KLR)

Amit Daniel Washington v Centum Learning Limited [2017] KEELRC 1810 (KLR)

Employment and Labour Relations Court
10 February 2017
738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled it can hear an employee's claim even without a written contract, because paying salary and accepting a resignation prove employment exists.

What this practically means

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Executive summary

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By a Statement of Claim dated 22nd September 2014, the Claimant sued the Respondent, Centum Learning Limited, for terminal dues. The Respondent filed a Memorandum of Response. At the hearing on 16th March 2016, cross-examination revealed that the Claimant's letter of appointment, dated 16th July 2007, cited Indian law and conferred exclusive jurisdiction on Indian courts. The Court suspended the hearing and directed submissions on jurisdiction. The Respondent argued there was no employment contract between itself and the Claimant and that disputes arising from his employment with Bharti Airtel Services lay beyond the Court's jurisdiction. The Claimant, relying on Halsbury's Laws of England and Shashikant Chandubhai Patel v Oriental Commercial Bank Ltd, contended that Bharti Airtel Services Limited had successively changed names to Centum Learning Limited, and pointed to the Respondent's acceptance of his resignation, payslips in Kenya Shillings, and an admission of an employment relationship in the Respondent's pleadings. The Court, per Linnet Ndolo J, held that by the time the Claimant resigned, his employment had metamorphosed from a written contract with Bharti Airtel Services to an unwritten contract with the Respondent, evidenced by conduct - the payment of salary and acceptance of resignation. The jurisdiction ouster clause in the Bharti Airtel Services letter of appointment formed no part of the Claimant's engagement with the Respondent. The Court assumed jurisdiction, directed the matter to proceed to full hearing, and made no order for costs.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court in the face of a contractual ouster clause favouring foreign courts

Holding

The Court assumed jurisdiction because the ouster clause was contained in a letter of appointment issued by Bharti Airtel Services and formed no part of the Claimant's engagement with the Respondent.

Reasoning

During cross-examination it emerged that the Claimant's letter of appointment cited Indian law and Indian courts. The Court however traced how the employment relationship had changed hands, concluding that the written contract with Bharti Airtel Services had been replaced by an unwritten, conduct-based contract with the Respondent. Since the ouster clause belonged to the former contract, it could not bar this Court's jurisdiction over the current employment relationship.

p. 2
02

Existence of an employment relationship inferable from conduct

Holding

By the time the Claimant resigned, his employment had metamorphosed from a written contract with Bharti Airtel Services to an unwritten contract with the Respondent, evidenced by conduct.

Reasoning

Relying on Halsbury's Laws of England and the decision in Shashikant Chandubhai Patel v Oriental Commercial Bank Ltd, the Court found that a contract of employment may be inferred from conduct. The Respondent paid the Claimant monthly salary in Kenya Shillings, accepted his resignation, and admitted an employment relationship in its Memorandum of Response. These facts showed an employer-employee relationship with the Respondent despite the absence of a written contract.

p. 2

Legal principles established

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  • Terms of employment may be implied from the conduct of the parties; paying a salary and accepting a resignation evidence an employment relationship even absent a written contract.
  • A jurisdiction ouster clause in a letter of appointment issued by a different entity does not bind an employment relationship subsequently formed with another employer through conduct.

Court orders

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  1. 1.This Court assumes jurisdiction
  2. 2.The matter shall proceed to full hearing
  3. 3.No order for costs

Authorities

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Cases cited (1)

  • Shashikant Chandubhai Patel v Oriental Commercial Bank Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (disputed on the basis of a contractual ouster clause in favour of Indian courts); the Court assumed jurisdiction under its constitutive employment jurisdiction after finding the ouster clause inapplicable

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, "Amit Daniel Washington v Centum Learning Limited [2017] KEELRC 1810 (KLR)", Case Analysis (2017). Not stated in the excerpt (Statement of Claim dated 22nd September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1810/eng@2017-02-10

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