Benson Wachira Maina v Prime Steel Mills Limited [2020] KEELRC 494 (KLR)
The bottom line
#A Kenyan court ruled that pushing an injured worker back to work without proper recovery or pay amounts to constructive dismissal, awarding him over Kshs. 144,000.
What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal
The Claimant was constructively terminated where the Respondent expected him to resume work while still unwell after a workplace accident and failed to pay his salary during the intervening period.
The claimant was injured at work on 18 May 2015 and produced medical documents. The Respondent paid only half salary until December 2015 and then ordered him to resume work without an alternative safe placement despite incomplete recovery. Proceeding ex parte, the court held the claimant's contention uncontroverted, that it was unfair and unjustified to expect him to continue working while nursing injuries, and that the failure to pay salary indicated the Respondent had terminated or intended to terminate the employment.
Employer's duty to provide a safe working environment and protective gear
The Respondent failed to provide protective gear and a safe working environment, which led to the claimant's injuries.
The claimant testified that the only protective wear provided was a helmet and ordinary overalls inadequate for furnace work. With no evidence controverting this, the court found a breach of the employer's statutory duty, linking the failure to supply adequate protective gear to the explosion injuries sustained and the constructive termination found.
Remedies for unfair termination
The claimant was entitled to one month's salary in lieu of notice, leave pay for 2014/2015, service pay for 5 years, and the equivalent of 10 months' salary as compensation for unfair termination.
Having found constructive termination, the court applied statutory entitlements: payment in lieu of notice, accrued leave pay for the year 2014/2015 only, service pay computed at half a month's salary for each of 5 years, and compensation under Section 49(1)(c) of the Employment Act quantified at 10 months' salary, totalling Kshs. 144,333/=. The court did not award the full heads claimed, scaling remedies to the employment period and earnings.
Legal principles established
#- It is the duty of an employer to provide protective gear to an employee and to provide a safe working environment
- Where an employer fails to enter appearance or file a defence, the claimant's evidence remains uncontroverted
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs. 9,954/=
- 2.Leave pay for year 2014/2015 of Kshs. 9,954/=
- 3.Service pay for 5 years of Kshs. 24,885/= (15 days salary for each year)
- 4.10 months' salary for unfair termination of Kshs. 99,540/=
- 5.Total award of Kshs. 144,333/= to be paid by the Respondent
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Work Injury Benefits Act (as pleaded by the claimant)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Mwangi Wangui v Prime Steel Mills Limited [2020] KEELRC 452 (KLR)[2020] KEELRC 452 (KLR)17 Sept 2020
Cite this brief
#Cite this brief
Caselaw, "Benson Wachira Maina v Prime Steel Mills Limited [2020] KEELRC 494 (KLR)", Case Analysis (2020). Cause No. 622 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/494/eng@2020-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.