David Mulwa Mulinge v Laminates Furniture Limited [2018] KEELRC 253 (KLR)
The bottom line
#Kenyan employers cannot cut your salary or change your job terms without consulting you — doing so counts as unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the unilateral reduction of the Claimant's salary and change of his status to casual in December 2011 amounted to a termination of employment
Yes - the alteration without consultation amounted to constructive dismissal and the Claimant was right to treat himself as terminated without notice
The Claimant's payslips for September to November 2011 showed a gross salary of 15,600, but the December 2011 payslip exhibited by the Respondent showed a reduced figure of 8,869 with no explanation. Section 10(5) of the Employment Act requires the employer, where contract terms change, to consult the employee and notify him in writing. No consultation took place. Relying on the Western Excavating v Sharp constructive dismissal principle as applied by the Court of Appeal, the court held the conduct was a significant breach going to the root of the contract.
What remedies flow from the constructive/unfair termination
One month's salary in lieu of notice and 12 months' salary as compensation for unfair termination, totalling Kshs. 202,800, plus costs and interest
Having found for the Claimant on the constructive dismissal claim, the court awarded one month's salary in lieu of notice at 15,600 and the maximum 12 months' salary as compensation for unfair termination under the Employment Act, being 12 x 15,600 = 187,200. The court also awarded costs of the suit plus interest at court rates from the date of judgment. Claims for gratuity, tools allowance and off-duty pay were not awarded as unproved or unanchored.
Legal principles established
#- Unilateral alteration of essential contract terms without consultation with the employee amounts to constructive dismissal, entitling the employee to treat himself as discharged from further performance
- Where any matter stipulated in the written statement of particulars changes, the employer must, in consultation with the employee, revise the contract and notify the employee of the change in writing
Court orders
#- 1.Respondent to pay the Claimant 1 month's salary in lieu of notice of Kshs. 15,600
- 2.Respondent to pay the Claimant 12 months' salary as compensation for unfair termination of Kshs. 187,200
- 3.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joyce Wangari Mwangi v Shaban Gakere Bhakari [2019] KEELC 2405 (KLR)[2019] KEELC 2405 (KLR)12 Jul 2019applied
Cite this brief
#Cite this brief
Caselaw, "David Mulwa Mulinge v Laminates Furniture Limited [2018] KEELRC 253 (KLR)", Case Analysis (2018). Cause No. 1378 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/253/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.