Wilberforce Sifuna v Burhani Engineers Limited [2019] KEELRC 1257 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimants' salary-increment letter amounted to a resignation
The letter was a grievance seeking a salary increase with a threat of industrial action, not a resignation; the alleged resignation did not exist
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.
Whether the termination was fair and justified
The termination was unfair and unjustified as it was based on a non-existent resignation and no procedure was followed
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.
Whether the Respondent's counterclaim was proved
The counterclaim failed for want of proof
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.
Legal principles established
#- 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
#- 1.Award of 2 months' salary in lieu of notice (Kshs. 36,000/=) to each Claimant
- 2.Award of 10 months' salary as compensation for unfair termination (Kshs. 180,000/=) to each Claimant
- 3.Award of unpaid leave for 16 days (Kshs. 9,600/=) to each Claimant
- 4.Issuance of a Certificate of Service to each Claimant
- 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- 6.Dismissal of the Respondent's counterclaim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.