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ELRCPartially Allowed· [2018] KEELRC 1135 (KLR)

Charles Odhiambo Oduor v John Robert Scot Chatwin [2018] KEELRC 1135 (KLR)

Employment and Labour Relations Court
28 September 2018
1,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent as a Home Guard at the Respondent's Nyali, Mombasa residence from April 2007 to December 2014 at a monthly salary of Kshs. 8,000, sued claiming that his contract had been converted to regular terms under Section 37 of the Employment Act and that his termination was unfair. He sought declarations, 12 months' salary as compensation (Kshs. 96,000), N.S.S.F contributions of Kshs. 1,600 for four months, a Certificate of Service, costs and interest. The Respondent asserted that in December 2014 his daughter (Mrs. Cleave) took over the residence with all domestic employees, that the Claimant was offered continued employment as a Gardener by the son-in-law, and that the Claimant left without notice, taking furniture. Four witnesses for the Respondent confirmed an offer of gardening work which the Claimant declined; he told witnesses he did not wish to work for Cleave, carted away his goods and was later found working as a Caretaker elsewhere. The court found the Claimant was not a casual employee, so a Section 37 conversion declaration was pointless; termination was self-induced and not by the Respondent, so compensation and notice pay failed; and the 'Final Payment' acknowledgment covered full and final settlement. However, N.S.S.F accounts showed non-remittance for the four months, and the Respondent was directed to remit those contributions, the Claimant to pursue the N.S.S.F enforcement regime. A Certificate of Service was ordered under Section 51. Prayers (a), (b) and (c) of the Statement of Claim were rejected; no order was made on costs. Judgment delivered at Mombasa on 28th September 2018 by James Rika, Judge.

Key legal issues

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01

Whether termination by the Respondent was unfair

Holding

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.

Reasoning

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.

p. 2
02

Whether the contract was converted to regular terms under Section 37 of the Employment Act

Holding

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.

Reasoning

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.

p. 2
03

Whether the Claimant was entitled to refund of N.S.S.F contributions for four months

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Prayers 19 [a] [b] and [c] of the Statement of Claim are rejected
  2. 2.Certificate of Service to issue
  3. 3.No order on the costs
  4. 4.The Respondent shall ensure the unremitted N.S.S.F contributions for the 4 months in question are remitted

Authorities

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Legislation

  • Employment ActSection 37(1)
  • Employment ActSection 51
  • N.S.S.F (statutory contributions)enforcement regime
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007; Employment and Labour Relations Court Act)

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, "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.