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ELRCDismissedCause No 453 of 2016· [2020] KEELRC 757 (KLR)

Catherine Mumbi Mbuthia v Perfect Touch Drycleaners Limited [2020] KEELRC 757 (KLR)

Employment and Labour Relations Court
3 July 2020
BOByram Ongaya
1,643 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a Kenyan employee's unfair termination claim, ruling she had voluntarily resigned—so employees must prove dismissal, not just allege it.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2 June 2010 as a Front Office and Marketing Assistant and later confirmed as Supervisor, sued for a declaration that her termination was unfair and for unpaid dues of Kshs. 608,100, comprising three months' pay in lieu of notice, five years' house allowance, overtime pay, compensation for unfair termination, a certificate of service, costs and interest. She alleged that on 30 November 2015 the respondent's Director verbally terminated her employment without notice or cause, and that she worked two hours of daily overtime without compensation. The respondent denied termination, pleading that the claimant resigned voluntarily on 30 November 2015 after collecting her salary, that she had earlier signalled an intention to quit via SMS, that she promised a resignation letter she never delivered, and that any overtime was compensated with off-days; it also contended the agreed pay was gross and consolidated. The court found the claimant's evidence inconsistent and contradictory of her pleadings, while the respondent's account, especially that of RW3, was coherent. It held the claimant voluntarily and orally resigned, and following David Njuguna Mungai, resignation being unilateral, no claim for unfair termination arises absent constructive dismissal. Claims for house allowance failed because the gross consolidated pay included a reasonable house allowance element per section 31 of the Employment Act and Postal Corporation of Kenya v Tanui, and the overtime claim failed as overtime was compensated with off-days. The memorandum of claim was dismissed with costs to the respondent.

Key legal issues

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01

Whether the claimant was terminated without notice and reason or resigned voluntarily

Holding

The claimant voluntarily and orally resigned from employment; she failed to establish wrongful, unfair and unlawful dismissal

Reasoning

The court found the claimant's evidence inconsistent and contradictory of her pleadings, while RW3's account of the claimant requesting to leave employment on 30.11.2015 was coherent and credible. The claimant's continued dealings with the respondent, including bringing customers and second-hand clothes, were inconsistent with wrongful termination. Resignation being unilateral, no claim for unfair termination lay absent constructive dismissal.

p. 2
02

Entitlement to house allowance on a gross consolidated salary

Holding

The claim of 15% house allowance collapses where the agreed pay was gross and consolidated

Reasoning

Relying on Postal Corporation of Kenya v Andrew K. Tanui, the court held that gross salary includes basic pay and allowances before deductions. As the parties agreed on gross pay, it contained a reasonable element of house allowance in terms of section 31 of the Employment Act, 2007, and no statutory or contractual basis for the 15% claim was pleaded or established.

p. 2
03

Entitlement to overtime pay

Holding

The overtime claim fails as overtime was compensated by off-days or leave days

Reasoning

The respondent filed leave request forms showing the claimant was granted leave or off-days on account of overtime served. RW3's evidence that overtime was compensated accordingly was not doubted, so the claim for Kshs. 83,600 overtime pay was not justified.

p. 3

Legal principles established

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  • Resignation is a unilateral act which brings about termination of the employment relationship without requiring acceptance, and where an employee has resigned without establishing constructive dismissal, no claim for unfair termination arises
  • Gross salary includes basic pay plus allowances before deductions, so a consolidated gross pay carries a reasonable element of house allowance under section 31 of the Employment Act

Court orders

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  1. 1.Judgment entered for the respondent against the claimant
  2. 2.Dismissal of the memorandum of claim
  3. 3.Claimant to pay the respondent's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 31

Cases cited (2)

  • David Njuguna Mungai –Versus- Registered Trustees of Sisters of Mercy t/a Mater Hospital
    [2015] eKLR
  • Postal Corporation of Kenya –Versus- Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Labour Relations Court Act)

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, "Catherine Mumbi Mbuthia v Perfect Touch Drycleaners Limited [2020] KEELRC 757 (KLR)", Case Analysis (2020). Cause No 453 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/757/eng@2020-07-03

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