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ELRCOtherNot stated in judgment· [2019] KEELRC 1421 (KLR)

Kevin Likhanga Musitia v Seifee Glass Mart Ltd [2019] KEELRC 1421 (KLR)

Employment and Labour Relations Court
13 June 2019
JRJames Rika
2,493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa employment court ruled that a worker who walked off his job cannot claim constructive dismissal, and both sides' claims collapsed.

What this practically means

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Executive summary

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The Claimant sued the Respondent, a window fabrication company, alleging he was constructively dismissed on 5th August 2015, four months before the expiry of a contract commencing January 2015 at a monthly salary of Kshs. 14,300. He claimed he was injured at work while loading glass, was refused light duty and branded a 'lazy woman', and that the Respondent prepared a resignation letter for him which he refused to sign. He sought a declaration of constructive and unfair dismissal, Kshs. 100,100 comprising salary for the unexpired contract period, annual leave pay and one month's notice, damages, costs and interest. The Respondent denied the dismissal, asserting the Claimant voluntarily declared he would no longer work, requested that a resignation letter be prepared for him, and left without giving notice; it counterclaimed notice pay of Kshs. 14,300. The Claimant conceded in cross-examination that his main grievance was unpaid overtime, that he asked to be paid his dues and go his way, and that he was not forced out. Applying the constructive dismissal principles in Coca Cola East & Central Africa Limited v. Maria Kagai Ligaga, the court found the work environment was not made intolerable, light duty had been offered after the injury, and since the Claimant pleaded verbal termination, dismissal was explicit rather than constructive. The court found the Claimant left employment on his own volition. His annual leave claim failed for want of 12 continuous months of service under Section 28 of the Employment Act. The Respondent's admission that it did not pay the last month's salary satisfied its own Counterclaim for notice pay. IN SUM, both the Claim and Counterclaim were rejected, with no order on the costs. Dated and delivered at Mombasa on 13th June 2019 by James Rika, Judge.

Key legal issues

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01

Constructive dismissal

Holding

Not established; the Claimant left employment on his own volition after asking for his dues

Reasoning

The court applied the Coca Cola v Ligaga test and found the employer had not made the work environment intolerable, had offered light duty after the injury, and had not repudiated fundamental terms. The Claimant's own cross-examination concessions - that his main grievance was overtime and that he asked to be paid his dues and go his way - undermined constructive dismissal. Further, he pleaded verbal termination, which is explicit, leaving nothing to infer.

p. 3
02

Credibility of parties' accounts on who initiated termination

Holding

The court believed the Respondent's witnesses, especially the Foreman Ng'ela

Reasoning

The court found no reason to disbelieve Ng'ela, who discounted every significant averment made by the Claimant and affirmed the Claimant expressed a wish to leave. The Claimant's failure to sign the drafted resignation letter, followed by his departure, was consistent with voluntary exit rather than dismissal.

p. 3
03

Annual leave entitlement

Holding

Refused; the Claimant had not served 12 continuous months and had been away from work on other occasions

Reasoning

Under Section 28 of the Employment Act, annual leave accrues after 12 continuous months of service. The Claimant worked only 8 months of the contract year, took leave in May 2015, was away 21 days for injury, and was sick with malaria on other occasions, making the claim unreasonable and unsustainable.

p. 4
04

Respondent's Counterclaim for notice pay

Holding

Rejected; the unpaid last month's salary satisfies the notice pay demand

Reasoning

Nurdin admitted the Respondent did not pay the Claimant's salary for the last month worked. The court held this admission should satisfy the Counterclaim demand of Kshs. 14,300 for notice pay, since the party terminating without notice was already effectively bearing the equivalent amount.

p. 4

Legal principles established

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  • Constructive dismissal requires the employer to have made the work environment intolerable; dismissal is constructive only when it is not explicit but derived by inference
  • An employer may terminate a contract for incompatibility under Section 45(2)(b) of the Employment Act
  • A claim to annual leave pay requires 12 continuous months of service under Section 28 of the Employment Act

Court orders

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  1. 1.Both Claim and Counterclaim are rejected
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment ActSection 45 [2] [b]
  • Employment ActSection 28

Cases cited (1)

  • Coca Cola East & Central Africa Limited v. Maria Kagai Ligaga
    [2015] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment cause)

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, "Kevin Likhanga Musitia v Seifee Glass Mart Ltd [2019] KEELRC 1421 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1421/eng@2019-06-13

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