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ELRCDismissedCause No. 187 of 2017· [2018] KEELRC 160 (KLR)

Benard Ogallo Animu v Gilanis Supermarket Limited [2018] KEELRC 160 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
6 December 2018
MMM. Mbaru
1,687 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 an employee who resigned after a misconduct query left voluntarily, and must pay his former employer one month's notice.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a general worker on 14th May 2016 at a consolidated wage of Ksh.14,100.00, was occasionally assigned turn boy duties on lorry KBM 217V. On 22nd February 2017, while offloading goods, he was found with an excess case of Afya mixed fruit juice concealed among waste cartons in the lorry. The respondent contended this amounted to concealment of goods; the claimant contended he had reported the case to the manager. He was issued a show cause notice, wrote a letter of apology asking for forgiveness, and on the same date tendered a resignation with immediate effect. He sued seeking notice pay, salary for 22 days worked, accrued leave, underpayment as a turn boy, fixed overtime, compensation, a certificate of service and costs. The respondent admitted employment and the resignation, asserted it was voluntary, and that his terminal dues of Ksh.9,268.00 remained uncollected. The court held that the resignation was voluntary, not made under duress, because the claimant apologised, did not respond to the show cause notice, and never mentioned duress in his demand for dues. However, the resignation was without notice under section 35 of the Employment Act, so notice pay of Ksh.14,100.00 is due from the claimant to the respondent. The underpayment and overtime claims failed because the employer alone can change terms of employment, and the claimant remained a general worker. The respondent's computation of terminal dues, including 14 accrued leave days, was found reasonable and fair. All claims were dismissed, with each party bearing its own costs, and a certificate of service to issue.

Key legal issues

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01

Whether the resignation was made under duress

Holding

The resignation was voluntary; the claimant wrote an apology, acknowledged the show cause notice, did not respond to it, and never mentioned duress in his demand for terminal dues

Reasoning

The claimant was issued a show cause notice and invited to a hearing. Instead of answering it he wrote an apology and resigned. The court held that had the resignation been forced he would have protested or addressed the show cause notice. His later demand for dues made no mention of duress. The notice to resign was therefore his own action.

p. 2
02

Underpayment claim for turn boy duties

Holding

Not due; the claimant was employed and paid as a general worker and could not confer a different title on himself

Reasoning

The employer has the statutory duty under sections 10(5) and 13 of the Employment Act to effect changes to employment and give written notice of such change. Since the employer never changed the claimant's position, performing occasional turn boy duties as a reliever did not convert his role, and his wage commensurate to general worker was lawful.

p. 3
03

Terminal dues including accrued leave

Holding

The respondent's computation of terminal dues, including 14 leave days accrued over 8 months under section 28(1)(b), was reasonable and fair; the claimant must clear with the respondent and be paid

Reasoning

For the 8 full months of employment the claimant was entitled to 1.75 leave days per month under section 28(1)(b) of the Employment Act, amounting to 14 days. The respondent had computed dues of Ksh.21,768.00 less deductions, leaving Ksh.9,268.00 held for the claimant, which the court found reasonable and fair.

p. 3

Legal principles established

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  • A resignation will be treated as voluntary where the employee does not protest alleged duress or raise it in subsequent demands for dues
  • The employer bears the duty to effect and give written notice of changes to employment terms; an employee cannot self-allocate a different title
  • An employee who resigns without giving the notice required under section 35 of the Employment Act, 2007 forfeits notice pay and owes it to the employer

Court orders

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  1. 1.The claims are dismissed
  2. 2.The claimant is to pay the respondent notice pay at Ksh.14,100.00 being the gross pay
  3. 3.The claimant shall clear with the respondent, whose computation of terminal dues is found reasonable and fair, and the dues shall be processed and paid to him
  4. 4.A certificate of service should issue in accordance with the law
  5. 5.Each party shall bear own costs

Authorities

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Legislation

  • Employment Actsection 35
  • Employment Actsection 10(5)
  • Employment Actsection 13
  • Employment Actsection 28(1)(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "Benard Ogallo Animu v Gilanis Supermarket Limited [2018] KEELRC 160 (KLR)", Case Analysis (2018). Cause No. 187 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/160/eng@2018-12-06

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