Charles Odhiambo Oduor v John Robert Scot Chatwin [2018] KEELRC 1135 (KLR)
The bottom line
#A Kenyan employment court refused compensation for unfair termination because the employee walked away from an offered job, but ordered unremitted NSSF contributions paid.
What this practically means
#Executive summary
#Key legal issues
#Whether termination by the Respondent was unfair
The Claimant's employment was not terminated by the Respondent; the Claimant declined an offered gardening role with the incoming Cleaves and left, so any separation was self-induced.
The evidence of Kazungu and Mwaita showed the Claimant told them he would not work for Cleave, wished to live outside the residence, carted away his goods and did not return. The Cleaves brought their own guard so the guarding role ceased, but continued employment as a Gardener was offered. The court found the offer was rejected and the Claimant took up work elsewhere.
Whether the contract was converted to regular terms under Section 37 of the Employment Act
The court saw no evidence the Claimant was a casual employee, so a declaration of conversion under Section 37 was pointless and the associated reliefs were refused.
The Claimant worked as a Guard from 2007 at a fixed residence with a monthly salary of Kshs. 8,000. Nothing in the evidence suggested casual employment; he signed a 'Final Payment' acknowledgment of Kshs. 24,800 as full and final settlement. Notice pay and compensation claims therefore failed.
Whether the Claimant was entitled to refund of N.S.S.F contributions for four months
The deductions were lawful and the Respondent simply failed to remit them; the Respondent was ordered to remit and the Claimant to pursue N.S.S.F enforcement.
The Provisional Member Statement of Accounts from N.S.S.F exhibited by the Claimant showed non-remittance for May 2010 and August-October 2013. Since the deductions were properly made from the Claimant's wages, refunding them to the Claimant would be unjustified; the money is due to N.S.S.F.
Legal principles established
#- An employee who declines an offer of alternative employment and abandons the workplace cannot claim unfair termination; termination must be attributable to the employer.
- Lawfully made statutory deductions remitted or payable to N.S.S.F do not revert to the employee; the employee's remedy is under the N.S.S.F enforcement regime.
- An employee is entitled to a Certificate of Service under Section 51 of the Employment Act notwithstanding the manner of separation.
Court orders
#- 1.Prayers 19 [a] [b] and [c] of the Statement of Claim are rejected
- 2.Certificate of Service to issue
- 3.No order on the costs
- 4.The Respondent shall ensure the unremitted N.S.S.F contributions for the 4 months in question are remitted
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Odhiambo Oduor v John Robert Scot Chatwin [2018] KEELRC 1135 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1135/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.