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ELRCPartially AllowedCause No. 237 of 2019· [2020] KEELRC 1262 (KLR)

Caroline Masika v Parapet Cleaning Services [2020] KEELRC 1262 (KLR)

Employment and Labour Relations Court at Nairobi
15 April 2020
1,793 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that advertising an employee's job while she still held it forced her resignation, awarding her Kshs. 4.29 million for unfair constructive dismissal.

What this practically means

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Executive summary

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The Claimant, employed as Head Group of Sales by the Respondent under a letter of offer dated 19 February 2016, alleged constructive dismissal. She testified that after being placed on a Performance Improvement Plan despite achieving 80.3% of her target, she endured hostility and demeaning treatment from the Group CEO, including late-night calls on non-urgent matters. Her position was twice advertised - on the Brighter Monday site on 7 December 2017 and again in January 2018 via recruitment agency Reeds Africa - while she still held it. A performance review on 19 January 2018 proceeded without giving her an opportunity to respond to unsubstantiated allegations. She resigned on 22 January 2018, and her resignation was accepted within an hour. Terminal dues were disputed, with deductions for alleged absences and only partial payment of February 2018 entitlements. The Respondent neither entered appearance nor filed a defence, so the cause proceeded undefended. The court held that the Respondent had no valid reason to advertise the position the Claimant held, which forced her resignation, and that the Claimant's uncontroverted case stood proved as unfair constructive termination. The court awarded one month's salary in lieu of notice (Kshs. 345,000), 41 days' leave pay (Kshs. 471,500), mileage allowance (Kshs. 28,000), airtime allowance (Kshs. 3,500) and 10 months' salary as compensation (Kshs. 3,450,000), totalling Kshs. 4,298,000 less statutory deductions. Claims for unremitted NSSF contributions, service pay and commission failed for want of proof. The Respondent was ordered to pay costs plus interest at court rates from the date of judgment. Judgment was delivered via Zoom on 15 April 2020.

Key legal issues

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01

Constructive dismissal

Holding

The Respondent unfairly constructively terminated the Claimant's services by advertising her position while she still held it and making her position untenable

Reasoning

The court found no valid reason for advertising the position the Claimant held, which forced her to resign. The Respondent entered no appearance and filed no defence, so the Claimant's uncontroverted evidence stood proved. Relying on constructive dismissal principles, the court held the conduct amounted to unfair constructive termination entitling the Claimant to remedies.

p. 3
02

Quantum of compensation for unfair termination

Holding

The Claimant was awarded 10 months' gross salary as compensation plus notice pay, leave, mileage and airtime allowances

Reasoning

In the absence of a defence and any tabulation by the Respondent, the court exercised its discretion in awarding 10 months' gross salary, taking into account the Claimant's senior rank (Head Group of Sales) and her gross salary of Kshs. 345,000, in line with the approach in Kenfreight (E.A) Limited v Benson K. Nguti where 12 months' salary was awarded considering the respondent's rank.

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03

Burden of proving unremitted statutory deductions and commission claims

Holding

Claims for unremitted NSSF and service pay failed for want of proof, as did the commission claim

Reasoning

The court held that without an NSSF statement proving non-remittance, that prayer was untenable; service pay was likewise unavailable because the Claimant was an NSSF member; and the commission claim was not proved. The undefended status of the suit did not relieve the Claimant of proving these specific heads of claim.

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Legal principles established

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  • Advertising an employee's position while they still hold it, without valid reason, may constitute constructive dismissal forcing the employee to resign
  • Where a respondent offers no evidence to controvert the claimant's case, the claimant's case stands proved

Court orders

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  1. 1.Declaration that the Respondent unfairly constructively terminated the Claimant's services
  2. 2.One month salary in lieu of notice of Kshs. 345,000
  3. 3.41 days leave pay of Kshs. 471,500
  4. 4.Mileage allowance for 21 days worked in February 2018 of Kshs. 28,000
  5. 5.Airtime allowance for 21 days of February 2018 of Kshs. 3,500
  6. 6.10 months' salary as compensation for unlawful termination of Kshs. 3,450,000, total Kshs. 4,298,000 less statutory deductions
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
  8. 8.Certificate of Service impliedly claimable though not expressly ordered

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 23(1), 29(d), 41(2)(b), 47
  • Employment Actnot specified

Cases cited (4)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
  • Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Union
    [2013] eKLR
  • Kenya Plantation & Agricultural Workers Union v Del Monte Kenya
    [2016] eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Constitution of Kenya, 2010 (Articles 22(1), 23(1), 29(d), 41(2)(b) and 47 invoked in the claim)

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, "Caroline Masika v Parapet Cleaning Services [2020] KEELRC 1262 (KLR)", Case Analysis (2020). Cause No. 237 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1262/eng@2020-04-15

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