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ELRCDismissedCause No 811 of 2015· [2018] KEELRC 1913 (KLR)

Elizabeth Murunga Nakhungu v Wilken Telecommunications [K] Limited [2018] KEELRC 1913 (KLR)

Employment and Labour Relations Court of Kenya
8 June 2018
JRJames Rika
2,474 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an employee who refused relocation to Nairobi effectively agreed to end her job, so no severance or compensation was payable.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 23rd May 2005 as a Front Office Administrator and rising to Branch Supervisor on Kshs. 40,000 monthly, was instructed by e-mail of 17th March 2015 to move with the Respondent's Mombasa Office to Nairobi effective 1st May 2015. She declined, citing a five-month-old baby and MBA studies based in Mombasa. She sought severance pay of Kshs. 200,000, damages for wrongful/unfair termination on redundancy of Kshs. 480,000, 10 annual leave days at Kshs. 20,000, and 12 months' salary compensation, with declaratory relief, costs and interest. The Respondent conceded the employment but maintained that losses at Mombasa justified closure and transfer to Nairobi; employees were notified from 18th September 2014, given sufficient time, and the Claimant was offered promotion, salary increment and a relocation fee, which she rejected. The Court held the decision to relocate and move staff fell within the employer's managerial prerogative and was not unreasonably exercised. Her contract did not restrict her to Mombasa, notice was sufficient, and the offers of accommodation were not taken up. The Court found the Claimant's letter of 18th March 2015 evidenced a meeting of minds that the contract be mutually terminated. Consequently severance pay under Section 40 of the Employment Act was unavailable, redundancy damages failed, the annual leave claim was unsupported, and 12 months' compensation was refused as the Court would not compensate twice for one termination and no disciplinary process was required for an agreed exit. The entire claim was dismissed with no order on costs.

Key legal issues

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01

Fairness of termination on refusal to relocate

Holding

Termination was not unfair; it amounted to a mutual termination by agreement after the Claimant declined relocation

Reasoning

The employer took an operational decision to centralize business in Nairobi, gave notice from September 2014, offered promotion, salary increment and relocation fee, and notified its landlord of the move. The Claimant declined in writing on 18 March 2015 citing her baby and MBA studies. The Court found a meeting of minds that the contract should end, so the Respondent did not act unreasonably.

p. 3
02

Severance pay under Section 40 of the Employment Act

Holding

Not payable because termination was not redundancy

Reasoning

Severance under Section 40 applies where positions are declared redundant. Here work was still available for the Claimant in a superior position in Nairobi; the parties agreed the contract was no longer workable and should end. The Claimant therefore could not claim severance for 10 years worked.

p. 3
03

Double compensation for one act of termination

Holding

A claimant cannot be compensated twice for a single termination

Reasoning

The Claimant claimed damages for wrongful/unfair termination on redundancy and separately 12 months' salary compensation for unfair termination. The Court held she had not shown why she should be compensated twice for a single act of termination, and in any event the termination was by agreement, making disciplinary or procedural safeguards unnecessary.

p. 3
04

Annual leave claim

Holding

Not established on the evidence

Reasoning

The Claimant's pleadings, witness statement and oral evidence did not support the claim for 10 annual leave days, so the Court found it unproven.

p. 3

Legal principles established

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  • The decision to relocate and move staff is within the employer's managerial prerogative
  • Where employer and employee agree the employment relationship cannot continue, disciplinary process and redundancy benefits are unnecessary
  • Labour is mobile and employees must have a degree of flexibility on where to work regardless of family circumstances

Court orders

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  1. 1.The Claim is hereby dismissed in its entirety.
  2. 2.No order on the costs.

Authorities

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Legislation

  • Employment ActSection 40
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act 2007 (first-instance employment dispute)

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, "Elizabeth Murunga Nakhungu v Wilken Telecommunications [K] Limited [2018] KEELRC 1913 (KLR)", Case Analysis (2018). Cause No 811 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1913/eng@2018-06-08

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