John M. Plapan v African Express Airways (K) Limited & another [2019] KEELRC 2526 (KLR)
The bottom line
#A Kenyan court ruled that forcing a pilot to choose between flying a defective aircraft or resigning was unfair constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant resigned or was constructively dismissed
The claimant was constructively dismissed; his September 2012 resignation was not accepted, and his December 2012 resignation was coerced by being forced to choose between flying a defective aircraft or resigning.
The court applied the contract test for constructive dismissal, noting the doctrine has no Kenyan statutory backing but applies through Article 41 constitutional protection of fair labour practices. The claimant had repeatedly complained in writing about the aircraft's mechanical condition. RW1 conceded the aircraft was never flown after the claimant refused; CW2 endorsed his refusal as courageous. Punishing a safety complaint by compelling resignation violated section 8 of the Occupational Safety and Health Act.
Whether the claimant is entitled to the reliefs sought
Claimant entitled to December 2012 salary, one month's pay in lieu of notice, and compensation of 6 months' salary rather than the 12 months claimed.
Having found constructive dismissal, the court held the claimant entitled to notice pay and the stopped December salary cheque, which attracts interest from 1st January 2013 as prayed. On compensation, the court weighed the length of service and the manner of exit - being punished for refusing to endanger lives and handed a stopped cheque - and found 6 months' salary reasonable rather than the statutory maximum of 12 months.
Whether the 1st respondent's counterclaim succeeds
Counterclaim dismissed with costs for want of evidence and absence of any agreement to refund training costs.
No evidence was adduced in support of the counterclaim. Both RW1 and CW2 confirmed the aircraft was unsafe to fly on 30th December 2012, and it was never flown thereafter. The claimant therefore could not be liable for losses arising from the grounded aircraft, and the figures claimed were unsupported by evidence. There was also no agreement that the claimant would refund training costs.
Legal principles established
#- An employee who is compelled to choose between flying a mechanically defective aircraft or resigning has been constructively dismissed by the employer
- An employer may not dismiss, injure or disadvantage an employee for complaining about workplace safety
- A resignation not accepted by the employer, evidenced by continued employment and payment, does not terminate the employment relationship
Court orders
#- 1.Judgment entered for the claimant against the 1st respondent for salary for December 2012 of USD 6,000
- 2.One month's salary in lieu of notice of USD 6,000
- 3.Compensation of USD 36,000 (6 months' salary)
- 4.Interest on the December 2012 salary at court rates from 1st January 2013
- 5.Counterclaim dismissed
- 6.1st respondent to pay claimant's costs for both the claim and the counterclaim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (court established under Article 162(2) of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John M. Plapan v African Express Airways (K) Limited & another [2019] KEELRC 2526 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2526/eng@2019-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.