Duncan Mugane v County Government of Embu [2019] KEELRC 467 (KLR)
The bottom line
#A Kenyan employer who stops an employee's salary forces a constructive dismissal and must compensate the worker, but it cannot recover pay for months not worked.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was absent from work contrary to the study leave condition
On a balance of probabilities, the Claimant was not absent, as the Respondent produced no records evidencing absenteeism
The study leave was granted on condition of fortnightly attendance. The Respondent accused the Claimant of absenteeism by letter dated 11 May 2012, which the Claimant denied. As the employer, the Respondent was required under Section 74 of the Employment Act to keep records and prove the failure to attend; having failed to rebut the Claimant's protest letter with proof, the court found no absenteeism established.
Whether the Claimant was entitled to salary for the period claimed
Partially - salary for January to March 2012 only, on the principle of no work no pay
While the Respondent failed to prove absenteeism, the court accepted the principle of no work no pay. The Claimant ceased attending the workplace in March 2012 and was paid up to December 2011; he could therefore recover only three months' unpaid salary at Kshs. 56,165.70 per month, computed at Kshs. 168,497.10, and nothing for the period he did not work.
Whether the stoppage of salary and subsequent resignation amounted to constructive dismissal
Yes - the resignation followed the stoppage of salary and constituted constructive dismissal, compensated at 3 months' salary
The court found that the Respondent's stoppage of the Claimant's salary forced him to resign. The Claimant submitted the Respondent's failure to pay his salary forced the resignation, and the court accepted this, holding it amounted to constructive dismissal and fixing compensation at three months' salary, matching the salary figure awarded.
Legal principles established
#- Under Section 74 of the Employment Act, the employer bears the duty to keep employment records and to prove an employee's absenteeism or failure to perform duties
- Stopping an employee's salary, thereby forcing a resignation, amounts to constructive dismissal attracting compensation
Court orders
#- 1.Kshs 168,497.10 being salary for the months of January, February and March 2012 when he was unpaid but was still attending work
- 2.Kshs. 168,497.10 being 3 months compensation for the unlawful constructive dismissal
- 3.Cost of the suit
- 4.Interest at court rates on (a) and (b) above from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; Employment and Labour Relations Court Act) - not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Mugane v County Government of Embu [2019] KEELRC 467 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/467/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.