Hesbon Mose v Civicon Limited [2018] KEELRC 289 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot switch an expatriate worker's salary currency mid-assignment and firing him for complaining earned 12 months' compensation.
What this practically means
#Executive summary
#Key legal issues
#Currency of remuneration for cross-border employment
The parties intended remuneration to be USD-denominated; the Respondent wrongfully imposed the SS Pound at a hedged rate
The Court examined the initial contracts, e-mails from supervisors Maria, Mike Huth and Keith Murrer, and payroll records, which showed USD-denominated pay. The Respondent had options of home, host or third-country currency and chose USD, but altered it mid-assignment to SS Pound at a fixed hedged rate of 2.65, devaluing the Claimant's package contrary to Section 10 of the Employment Act.
Unfair termination and compensation
Termination was procedurally and substantively unfair; 12 months' salary compensation awarded
The Claimant was dismissed for questioning the currency switch, a matter that also affected other employees and was reported to the SS Ministry of Labour. He was given no hearing or notification, contrary to Sections 41 and 43 of the Employment Act, and received no terminal benefits. The Court awarded the equivalent of 12 months' salary.
Burden of proof on ancillary monetary claims
Claims unsupported by particulars, computation or documents fail
The Court declined the 19-month underpayment, refund, overtime and resting day claims because the Claimant provided no computations, time-sheets or evidence of approval, illustrating that a claimant must prove the basis of each monetary head of claim.
Legal principles established
#- Employers with staff assigned outside their home country must decide the currency of payment before the assignment begins and may not unilaterally alter it mid-assignment to the employee's detriment
- Termination of an employee for persistently questioning unilateral changes to his remuneration, without a hearing, is substantively and procedurally unfair under Sections 41 and 43 of the Employment Act
Court orders
#- 1.Declaration that termination of the Claimant's contract was unfair
- 2.Payment to the Claimant of underpayment of salary in South Sudan at USD 3,279
- 3.Payment of underpayment in the DRC at USD 5,285
- 4.Payment of 1 month salary in lieu of notice at USD 1,500
- 5.Payment of service pay at USD 2,596
- 6.Payment of equivalent of 12 months' salary in compensation for unfair termination at USD 18,000 (total USD 31,525)
- 7.Certificate of Service to issue
- 8.Costs to the Claimant
- 9.Interest at 14% per annum from the date of Judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Employment and Labour Relations Court [Procedure] Rules 2016 (claim determined under Rule 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesbon Mose v Civicon Limited [2018] KEELRC 289 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/289/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.