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ELRCPartially AllowedELRC Cause No. 1170 of 2015· [2019] KEELRC 1257 (KLR)

Wilberforce Sifuna v Burhani Engineers Limited [2019] KEELRC 1257 (KLR)

Employment and Labour Relations Court of Kenya
18 June 2019
1,888 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 an employee's letter demanding a salary raise is not a resignation, so firing the workers for it was unfair and costly for the employer.

What this practically means

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Executive summary

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Five claimants, employed by Burhani Engineers Limited on 31 January 2012 (alleging casual engagement from August 2011), sued for damages for unlawful termination and terminal benefits after their services ended on 1 October 2014. They had written a letter seeking a salary increment, with a rider that they would down their tools if September salary was not increased. The Respondent construed the letter as a conditional resignation, revoked their gate passes, and accepted the purported resignation when they failed to report to work. The Respondent also counterclaimed, alleging abandonment of duty caused the UN client to deduct Kshs. 720,000/= from monthly payments. The court held that the letter was a grievance, not a resignation, and that the Respondent terminated the Claimants for no valid reason and without following due process, contrary to sections 45(2) and 41 of the Employment Act, rendering the termination unfair and unjustified. The counterclaim failed for want of proof that the Claimants caused the UN's variation. Each Claimant was awarded two months' salary in lieu of notice (Kshs. 36,000/=), ten months' salary as compensation for unfair termination (Kshs. 180,000/=), unpaid leave for 16 days (Kshs. 9,600/=), and a Certificate of Service, with costs plus interest at court rates from the date of judgment. The counterclaim was dismissed.

Key legal issues

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01

Whether the Claimants' salary-increment letter amounted to a resignation

Holding

The letter was a grievance seeking a salary increase with a threat of industrial action, not a resignation; the alleged resignation did not exist

Reasoning

The court examined the joint letter dated 3.9.2014 and found it sought an increment with a rider that the Claimants would down tools. It contained no unambiguous intention to end the employment contract. The Respondent's characterization of the grievance as a conditional resignation was therefore false and could not found a lawful termination.

p. 4
02

Whether the termination was fair and justified

Holding

The termination was unfair and unjustified as it was based on a non-existent resignation and no procedure was followed

Reasoning

Under section 45(2) of the Employment Act, an employer must prove a valid and fair reason and that fair procedure was followed. Here the Respondent terminated the Claimants for a non-existent resignation, without notice or payment in lieu, and without according them an opportunity to be heard. Both reason and procedure failed the statutory test.

p. 4
03

Whether the Respondent's counterclaim was proved

Holding

The counterclaim failed for want of proof

Reasoning

The Respondent alleged that the UN deducted Kshs. 720,000/= for underperformance caused by the Claimants' absenteeism. However, no evidence was called to link the variation to the Claimants' conduct. A party alleging loss must prove it; the counterclaim was accordingly dismissed.

p. 4

Legal principles established

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  • An employee's letter demanding better terms does not constitute a resignation; an employer cannot unilaterally construe a grievance letter as resignation and treat the employee's failure to report to work as acceptance of resignation
  • Termination of employment is unfair where the employer fails to prove a valid reason, a fair reason and adherence to fair procedure under section 45(2) of the Employment Act

Court orders

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  1. 1.Award of 2 months' salary in lieu of notice (Kshs. 36,000/=) to each Claimant
  2. 2.Award of 10 months' salary as compensation for unfair termination (Kshs. 180,000/=) to each Claimant
  3. 3.Award of unpaid leave for 16 days (Kshs. 9,600/=) to each Claimant
  4. 4.Issuance of a Certificate of Service to each Claimant
  5. 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
  6. 6.Dismissal of the Respondent's counterclaim

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 45(2)
  • Employment ActSection 49

Cases cited (2)

  • Nancy Jesany Sorgor Vs Kenya Women Finance Trust
    (2016) eKLR
  • Mwikali Nzuki Vs Food for the Hungry Kenya
    (2015) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (inherent jurisdiction of the ELRC over employment and labour relations disputes); Employment Act, 2007

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, "Wilberforce Sifuna v Burhani Engineers Limited [2019] KEELRC 1257 (KLR)", Case Analysis (2019). ELRC Cause No. 1170 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1257/eng@2019-06-18

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