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ELRCPartially AllowedStatement of claim dated 23.2.2018, filed 26.2.2018 (ELRC Bungoma)· [2018] KEELRC 1073 (KLR)

Protus Sifuna v Board of Management Siangwe Girls Secondary School [2018] KEELRC 1073 (KLR)

Employment and Labour Relations Court
28 September 2018
622 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 that a school's refusal to reinstate a worker after ordering it amounted to constructive dismissal, awarding him Kshs. 87,373.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent school as an office messenger from July 2014 and later deployed to the security department at a reduced salary, sued by a statement of claim dated 23.2.2018 seeking Kshs. 448,554/= comprising notice pay, twelve months' compensation for unlawful termination, leave pay, salary arrears, service gratuity, overtime, public holiday pay and house allowance. The suit, served on the school bursar on 28.2.18, was undefended. The court found that the claimant was suspended on 19.2.2017 for lateness; that a Board of Management meeting on 12.1.2018 recommended his immediate reinstatement, a directive the respondent refused to implement; and that instead he was invited to an interview after which he was told he did not qualify for employment. Holding that this conduct was an unfair labour practice amounting to constructive dismissal in violation of Sections 41, 43 and 45 of the Employment Act, 2007, the court awarded six months' salary (Kshs. 21,660/=) as compensation under Section 49, plus one month's notice pay (Kshs. 3,610/=), house allowance (Kshs. 36,000/=), service gratuity (Kshs. 14,440/=) and leave pay (Kshs. 11,663/=), totaling Kshs. 87,373/=, with interest at court rates from the date of filing suit and costs of the suit. Claims for salary arrears, overtime and public holidays worked were disallowed for insufficient proof. Judgment was dated and delivered at Bungoma on 28 September 2018.

Key legal issues

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01

Whether the respondent's conduct amounted to unfair labour practice and constructive dismissal

Holding

The claimant was unlawfully and unfairly constructively dismissed in violation of Sections 41, 43 and 45 of the Employment Act, 2007

Reasoning

The claimant was suspended for lateness, invited to a Board of Management meeting which recommended his immediate reinstatement, but the respondent refused to implement that directive and instead invited him to an interview after which he was told he did not qualify for employment. The court found this conduct deceptive and demeaning, constituting unfair labour practice amounting to constructive dismissal without payment of terminal benefits, proved on a balance of probabilities in an undefended suit.

p. 2
02

Quantum of compensation and terminal benefits

Holding

Six months' salary compensation plus one month in lieu of notice, leave pay, service gratuity and house allowance were awarded; salary arrears, overtime and public holiday claims were disallowed for want of proof

Reasoning

Considering the claimant's three and a half years of service and the deceptive, demeaning manner of his exit, the court exercised its discretion under Section 49 to award six months' salary. Heads of claim proved on a balance of probabilities were awarded as pleaded or computed; unproved heads (arrears, overtime, public holidays) were disallowed despite the undefended status of the suit.

p. 2

Legal principles established

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  • An employee who establishes constructive dismissal contrary to Sections 41, 43 and 45 of the Employment Act is entitled to compensation under Section 49(1)(c) and 49(4)
  • In an undefended claim, the claimant must still prove facts on a balance of probabilities

Court orders

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  1. 1.Kshs. 21,660/= being 6 months' salary in compensation for unlawful dismissal
  2. 2.Kshs. 3,610/= in lieu of notice
  3. 3.Kshs. 36,000/= house allowance
  4. 4.Kshs. 14,440/= service gratuity
  5. 5.Kshs. 11,663/= in lieu of leave days not taken
  6. 6.Total award of Kshs. 87,373/= with interest at court rates from date of filing suit till payment in full
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 49 invoked)

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, "Protus Sifuna v Board of Management Siangwe Girls Secondary School [2018] KEELRC 1073 (KLR)", Case Analysis (2018). Statement of claim dated 23.2.2018, filed 26.2.2018 (ELRC Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1073/eng@2018-09-28

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