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ELRCDismissedCause No 1677 of 2012· [2019] KEELRC 2015 (KLR)

Julius Michael Ooko v Tata Chemicals Magadi Limited [2019] KEELRC 2015 (KLR)

Employment and Labour Relations Court
22 March 2019
OMONESMUS N. MAKAU
3,204 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from 29th August 1995 until 23rd November 2011 and last serving as a Financial Accountant earning Kshs.192,800 per month, claimed Kshs.3,856,000/- plus interest, costs and a certificate of service, alleging that he was forced to resign following an altercation over a parking space with a colleague, and that his removal was actually instigated by his discovery of fraudulent activities within the company. The respondent maintained that he voluntarily resigned to avoid a disciplinary process arising from the altercation, that all his dues including three months' salary in lieu of notice were paid, and that he was disqualified from service pay as an NSSF member. The court framed two issues: whether the claimant voluntarily resigned or was constructively dismissed, and whether he was entitled to the reliefs sought. Applying the test that constructive dismissal requires the employee to prove repudiatory breach by the employer rendering continued employment intolerable, the court found the resignation letter - written less than a week after the show-cause letter, thanking management and offering three months' notice - showed a voluntary resignation to avoid disciplinary action. The claimant was estopped from alleging duress. Service pay was denied under Section 35(6) of the Employment Act because he was an NSSF member and had received his pension refund; compensation under Section 49(1)(c) was rejected as the claim of constructive dismissal had failed. The only relief granted was a certificate of service under Section 51. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the claimant's resignation was voluntary or amounted to constructive dismissal

Holding

The resignation was voluntary; the claimant resigned to avoid disciplinary action after a show-cause letter and did not prove any intolerable conduct by the employer.

Reasoning

The claimant had to prove constructive dismissal on a balance of probability by showing employer conduct amounting to repudiatory breach making continued employment intolerable. The resignation letter, written less than a week after the show-cause letter, blamed no one and thanked the management, and the claimant was ready to serve a three months' notice - inconsistent with duress.

p. 4
02

Whether the claimant was entitled to service pay

Holding

Not entitled, as he was a member of NSSF and the respondent remitted the requisite contributions.

Reasoning

Under Section 35(6) of the Employment Act, membership of NSSF disqualifies an employee from service pay. The claimant admitted in cross-examination that he was an NSSF member, deductions were made, and he received his pension refund after separation.

p. 4
03

Whether the claimant was entitled to a certificate of service

Holding

Granted, as a statutory right of every employee.

Reasoning

Section 51 of the Employment Act entitles every employee to a certificate of service irrespective of the manner of separation. This was the only relief that succeeded.

p. 5

Legal principles established

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  • Where an employee is a member of NSSF and the employer remits the requisite contributions, the employee is not entitled to service pay under Section 35(6) of the Employment Act.
  • The burden of proving constructive dismissal lies with the employee, who must show employer conduct amounting to a repudiatory breach rendering continued employment intolerable.
  • An employee who tenders an unqualified resignation expressing gratitude to the employer is estopped from later alleging that the resignation was forced.

Court orders

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  1. 1.The suit is dismissed save for the claim for Certificate of Service.
  2. 2.The claim for certificate of service is granted under section 51 of the Employment Act.
  3. 3.Each party shall bear his/her own costs.

Authorities

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Legislation

  • Employment Act, 2007Sections 35(6), 41, 42, 43(1), 45, 47(5), 49(1)(c), 51
  • Constitution of Kenya, 2010Article 50

Cases cited (9)

  • Alphonce Maghanga Mwachanya vs Operation 680 Limited
    (2013) eKLR
  • Ezekiel Mburu Kangethe & Others vs Mugoiri Five Farmers' Co-operative Society Limited
    Nyeri Cause No. 146 of 2015
  • Martin Wekesa Wamalwa Vs Barrow & Grundy (Ukunda) Limited
    (2013) eKLR
  • Mariana Onica & Another vs Sky Aero Limited
    Cause No. 1815 of 2014
  • Nathan Ogada Atiagaga vs David Engineering Limited
    (2015) eKLR; Cause No. 419 of 2014
  • Edward Machuka Nyamora vs Kenya Animal Genetic Resource Centre Formerly (Central Artificial Insemination Station
    [2018] eKLR
  • Kennedy Maina Mirera vs Barclays Bank of Kenya Limited
    (2018) eKLR
  • Michael Obudho Amondi vs United Millers Limited
    (2016) eKLR
  • Coca Cola East and Central Africa Limited vs Maria Kagai Ligaga
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (court not expressly stated in the judgment)

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, "Julius Michael Ooko v Tata Chemicals Magadi Limited [2019] KEELRC 2015 (KLR)", Case Analysis (2019). Cause No 1677 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2015/eng@2019-03-22

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