Anthony Karanja Chege v Attorney General, acting for the Office of the President, Ministry of Interior and Coordination of National Government [2019] KEELRC 1750 (KLR)
The bottom line
#A Kenyan court ruled that suspending an employee without pay for four months, with no hearing, forced his resignation and counts as unfair constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was constructively dismissed
Yes - issuing show cause notices, suspending the claimant without salary and never according him a hearing amounted to fundamental breach of the employment contract, and his resignation amounted to constructive dismissal
The claimant was issued a show cause notice on 7th July 2015 which he replied to, but no hearing was convened. A second notice of gross misconduct and suspension followed on 17th July 2015 with suspension without salary from 13th July 2015. Despite responses and supportive correspondence from the Deputy County Commissioner, the respondent never responded. He was kept without salary from July to November 2015, forcing his resignation. The court found this unjustified conduct constituted a fundamental breach entitling him to resign and to be treated as constructively dismissed.
Whether the constructive dismissal was unfair
Yes - the dismissal was unfair under sections 45, 41 and 43 of the Employment Act, 2007
There was no justification for keeping the claimant without salary from July to November 2015. The lack of a hearing on the allegations, the indefinite suspension without pay, and the failure to process his dues even after the pardon of 9th February 2016 offended sections 45, 41 and 43 of the Employment Act. The respondent tendered no evidence in defence, and the claimant's pleaded intolerable working conditions justified compensation.
Quantum of compensation
Ten months' gross salary awarded as compensation, plus notice pay and leave pay; other heads declined
The claimant earned a gross monthly wage of Ksh.26,404.00 at resignation. The court found ten months' gross salary appropriate compensation (Ksh.264,040.00), awarded one month's notice pay, and unchallenged pro-rated leave of Ksh.54,849.60. Claims for salary beyond the resignation date, leave travelling allowance, post-resignation travel costs and general damages were declined as unsupported or already redressed by compensation.
Legal principles established
#- Resignation is a legitimate mode of terminating employment, and once notice is served and received, the employer cannot compel the employee to continue working
- An employee may resign following an employer's conduct constituting repudiation of the contract, and must plead constructive dismissal
Court orders
#- 1.Declaration that the claimant was constructively dismissed by the respondent and that this is an unfair labour practice
- 2.Compensation for unfair termination of employment of Ksh.264,040.00
- 3.Notice pay of Ksh.26,040.00
- 4.Leave pay due of Ksh.54,849.60
- 5.Costs of the suit assessed at Ksh.20,000.00
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Karanja Chege v Attorney General, acting for the Office of the President, Ministry of Interior and Coordination of National Government [2019] KEELRC 1750 (KLR)", Case Analysis (2019). Cause No. 286 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1750/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.