Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 621 of 2016· [2020] KEELRC 452 (KLR)

John Mwangi Wangui v Prime Steel Mills Limited [2020] KEELRC 452 (KLR)

Employment and Labour Relations Court
17 September 2020
HWHellen S. Wasilwa
1,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that an employer who cuts an injured worker's pay and forces him back to work sick has unfairly dismissed him, awarding Kshs. 144,333.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent from May 2010 in the scrap metal section and later as a Plate Mason, sued for constructive dismissal. On 18 May 2015, while on night duty, a fire erupted from the furnace and he sustained injuries to his face and hands, requiring hospital admission from 19 May to 1 June 2015. He remained on sick off, during which the respondent paid him half salary until December 2015. When he was ordered to resume work in January 2016 despite not having healed, and with his salary stopped, he contended that the respondent's conduct amounted to constructive and unfair dismissal. He sought Kshs. 1,259,674 plus costs and interest, relying on heads including annual leave, sick pay, house allowance, overtime, days off, NSSF contributions, compensation under the Occupational Safety and Health Act and service pay. He noted that his injury compensation claim had already been determined in Kajiado CMCC 257 of 2016. The respondent did not enter appearance or file a defence, so the cause proceeded undefended and the claimant's evidence was uncontroverted. The court held that stopping the salary while the claimant was still on sick off and insisting that he resume duty was an act of constructive dismissal amounting to unfair dismissal. The court awarded notice pay of Kshs. 9,954, leave pay for 2014/2015 of Kshs. 9,954, service pay for five years of Kshs. 24,885, and ten months' salary for unfair termination of Kshs. 99,540, totalling Kshs. 144,333, plus costs and interest at court rates from the date of judgment.

Key legal issues

#
01

Whether ordering an unwell employee to resume work amounts to constructive dismissal

Holding

Yes - stopping salary during sick leave and insisting on resumption of duty constituted constructive and unfair dismissal

Reasoning

The claim proceeded undefended, so the claimant's evidence was uncontroverted. The court found the claimant established he sustained injuries while on duty and remained unwell. The respondent's insistence that he resume duty while stopping his salary was, in the court's view, an act of constructive dismissal amounting to unfair dismissal, attracting notice pay, leave pay, service pay and compensation.

p. 2
02

Entitlement to service pay under Section 35(5) of the Employment Act

Holding

Claimant awarded service pay of 15 days' salary for each of the 5 years served

Reasoning

Relying on Section 35(5) of the Employment Act as urged by the claimant, the court awarded service pay computed as half a month's salary (15 days) for each year of the five years served, totalling Kshs. 24,885 based on the monthly salary of Kshs. 9,954.

p. 2

Legal principles established

#
  • An employer who stops paying a salary and insists that an employee still on sick leave resume duty constructively dismisses that employee
  • Constructive dismissal amounts to unfair dismissal entitling the employee to statutory and compensatory reliefs

Court orders

#
  1. 1.1 month salary in lieu of notice of Kshs. 9,954
  2. 2.Leave pay for year 2014/2015 of Kshs. 9,954
  3. 3.Service pay for 5 years served of Kshs. 24,885 (1/2 x 9,954 x 5)
  4. 4.10 months' salary for unfair termination of Kshs. 99,540
  5. 5.Total award of Kshs. 144,333 to the claimant
  6. 6.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment

Authorities

#

Legislation

  • Employment ActSection 28
  • Employment ActSection 30
  • Employment ActSection 31
  • Employment ActSection 35(5)
  • Occupational Safety and Health Act

Cases cited (6)

  • Fancy Jeruto Cherop & another v Hotel Cathay Limited
    [2018] eKLR
  • Nathan Ogada Atiagaga v David Engineering Limited
    [2015] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Catherine Kinyany v Mcl Saatchi & Saatchi
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd
    [2013] eKLR
  • Benson Wachira Maina v Prime Steel Mills Limited (Kajiado CMCC 257 of 2016)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; the judgment does not cite a specific constitutional provision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Mwangi Wangui v Prime Steel Mills Limited [2020] KEELRC 452 (KLR)", Case Analysis (2020). Cause No. 621 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/452/eng@2020-09-17

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