Caroline Masika v Parapet Cleaning Services [2020] KEELRC 1262 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Constructive dismissal
The Respondent unfairly constructively terminated the Claimant's services by advertising her position while she still held it and making her position untenable
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.
Quantum of compensation for unfair termination
The Claimant was awarded 10 months' gross salary as compensation plus notice pay, leave, mileage and airtime allowances
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.
Burden of proving unremitted statutory deductions and commission claims
Claims for unremitted NSSF and service pay failed for want of proof, as did the commission claim
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.
Legal principles established
#- 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
#- 1.Declaration that the Respondent unfairly constructively terminated the Claimant's services
- 2.One month salary in lieu of notice of Kshs. 345,000
- 3.41 days leave pay of Kshs. 471,500
- 4.Mileage allowance for 21 days worked in February 2018 of Kshs. 28,000
- 5.Airtime allowance for 21 days of February 2018 of Kshs. 3,500
- 6.10 months' salary as compensation for unlawful termination of Kshs. 3,450,000, total Kshs. 4,298,000 less statutory deductions
- 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- 8.Certificate of Service impliedly claimable though not expressly ordered
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.