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ELRCPartially AllowedCause No 127 of 2016· [2020] KEELRC 277 (KLR)

Francis Nyongesa Okumu v SEB Estates Limited [2020] KEELRC 277 (KLR)

Employment and Labour Relations Court
29 October 2020
HWHellen Wasilwa
1,158 words in judgment
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The bottom line

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A Kenyan employer who changed a cleaner's job to guard duties without consulting or training him was ordered to pay Kshs. 172,737 in compensation and dues.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a cleaner from about 5th September 2009 at a monthly salary of Kshs. 7,600/-, claimed compensation for unfair and unlawful constructive termination and unpaid terminal dues. He alleged that in June 2015 the Respondent's Personnel Manager unilaterally reassigned him to the security department without formal training or consultation, prompting his resignation on 27th June 2015. He further alleged underpayment below the legal minimum wage and non-payment of house allowance throughout his employment. He sought declarations of unfair labour practice, terminal benefits totalling Kshs. 252,040/- comprising leave pay, house allowance for 69 months, underpayment differentials, service pay, a certificate of service, interest and costs. The Respondent was served but neither entered appearance nor filed a defence, and the matter proceeded as an undefended claim. The Claimant testified and adopted his witness statement, and filed written submissions relying on Sections 10, 28 and 35 of the Employment Act and several authorities on unilateral variation of employment terms and constructive dismissal. The court found the claim uncontroverted and held that the unilateral reassignment without consultation or training amounted to unfair labour practice and constructive termination. It awarded Kshs. 172,737.5/- comprising 8 months' salary as compensation, house allowance for 3 years, June 2015 salary, and underpayment differentials, plus costs and interest at court rates, but did not grant the pleaded leave pay, service pay or certificate of service. Judgment was delivered on 29th October 2020 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Unilateral variation of employment terms and constructive dismissal

Holding

The Respondent's redeployment of the Claimant to security duties without training or consultation amounted to unfair labour practice and constructive termination

Reasoning

The Claimant, employed as a cleaner, was reassigned to guard duties he was not trained for, on the same salary, prompting his resignation. The Respondent, though served, entered no appearance and adduced no contrary evidence. The court accepted the authorities relied on by the Claimant that failure to consult when changing terms of employment amounts to unfair and unlawful termination.

p. 2
02

Entitlement to remedies in an undefended claim

Holding

The Claimant was awarded compensation of 8 months' salary, house allowance for 3 years, one month's unpaid salary, and underpayment differential, totalling Kshs. 172,737.5/=, plus costs and interest

Reasoning

With the claim uncontroverted, the court found for the Claimant but exercised discretion to tailor the remedies: compensation limited to 8 months' salary under the Employment Act framework, house allowance limited to 3 years rather than the 69 months claimed, and underpayment computed on the minimum wage differentials for the periods from May 2013 to June 2015.

p. 2

Legal principles established

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  • An employer's unilateral change of an employee's terms of employment without consultation amounts to unfair labour practice and constructive termination
  • An undefended claim that remains uncontroverted is proved on the evidence led

Court orders

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  1. 1.8 months' salary as compensation for unfair constructive termination (8 x 7,600 = Kshs. 60,800/=)
  2. 2.Unpaid house allowance for 3 years prior to termination (15% x 7,600 x 36 = Kshs. 41,040/=)
  3. 3.Unpaid salary for June 2015 (Kshs. 7,600/=)
  4. 4.Underpayment of salary for 1st May 2013 to 1st May 2015 and 1st May 2015 to June 2015 (Kshs. 63,297.5/=)
  5. 5.Total award of Kshs. 172,737.5/= against the Respondent
  6. 6.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 10
  • Employment Act, 2007Section 28
  • Employment Act, 2007Section 35

Cases cited (3)

  • Elizabeth Kwamboka Khaemba Vs BOG Cardinal Otunga High School Mosocho & 2 Others
    (2014) eKLR
  • Kepha Thuo Magau Vs Board of Governors Satima Secondary School
    (2013) eKLR
  • Kenya Plantation & Agricultural Worrkers Union Verses James Finlays (K) Limited
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and terminal dues claims under the Employment Act, 2007 (Sections 10, 28, 35 relied on)

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, "Francis Nyongesa Okumu v SEB Estates Limited [2020] KEELRC 277 (KLR)", Case Analysis (2020). Cause No 127 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/277/eng@2020-10-29

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