Angela Gwiyo Kuria v Schenker Limited [2020] KEELRC 1345 (KLR)
The bottom line
#A Kenyan court ruled that an employee who resigns by invoking her notice clause cannot later claim constructive dismissal, but won her unpaid commissions.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's resignation amounted to constructive and unfair termination
No; the claimant voluntarily invoked the contractual notice clause and constructive dismissal was not established
The resignation letter was express that the contractual notice clause was invoked. The grounds now pleaded as constituting constructive dismissal were never stated as grounds for resignation. Any breach (failure to pay commissions, adverse work environment) had been condoned since 2014, so it could not be the reason for resignation. An employee who expressly exercises one available option is bound by it.
Entitlement to commissions under the remuneration clause
Only Kshs.393,799.00 awarded, being the amount the respondent acknowledged as due and unpaid; the larger claim failed for want of proof
The claimant bore the burden of showing she met the monthly gross profit target from new business. She did not plead particulars of the monthly gross profit or the new business, nor the quarterly demands required by the contract. The respondent admitted Kshs.393,799.00 was unpaid, and RW1 confirmed there was no evidence of payment.
Whether the claimant's right to equality and freedom from discrimination (Article 27(5)) was violated on grounds of sex
No; no evidence that the higher pay of two male juniors was actuated by considerations of sex
The claimant negotiated her own contract; the two men were employed later and interviewed with more favourable terms whose scope and negotiations were not before the Court. There was no evidence of the respondent's remuneration policy or that pay differences were gender-based. An assumption that the Head of Sales must be the highest paid would be irrational.
Whether the respondent violated the claimant's right of access to information under Article 35
Yes; the information requested by the advocates' letter dated 17.05.2016 was not provided
The evidence showed the requested payslips, required for the exercise or protection of the claimant's rights, were not supplied. However, because the discrimination case the information was meant to support failed, no damages were awarded for this breach.
Whether the claimant was subjected to unfair labour practices
Yes, in respect of non-payment of commissions while others were paid, but the injury was sufficiently cured by the award of the withheld commissions
The evidence established the claimant was entitled to commissions that were not paid whereas other employees entitled to commissions were paid. The Court held this amounted to an unfair labour practice, but found the award of the withheld commissions sufficient remedy, so no separate relief was granted.
Legal principles established
#- Where an employee has two or more options to terminate employment and expressly exercises one, the employee is bound by the option voluntarily exercised and the Court will not recharacterise the separation on the basis of unexercised options
- A delay in resigning after an employer's breach may amount to waiver of that breach as a ground for constructive dismissal
- Ingredients of constructive dismissal: employer's fundamental/repudiatory breach, resignation in response to it, and no delay in resigning
Court orders
#- 1.The respondent to pay the claimant Kshs.393,799.00 by 01.05.2020, failing which interest at court rates from the date of judgment till full payment
- 2.Declaration that the respondent violated the claimant's right to information under Article 35 of the Constitution
- 3.The respondent to deliver the claimant's certificate of service within 30 days from the date of the judgment
- 4.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (employment relationship between the parties); Article 35 and Article 27(5) of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutuah v Tracom Services Limited (Cause E767 of 2021) [2023] KEELRC 2917 (KLR)[2023] KEELRC 2917 (KLR)16 Nov 2023
- Kiliru v Proctor & Allan (EA) Limited (Cause 231 of 2021) [2023] KEELRC 2496 (KLR)[2023] KEELRC 2496 (KLR)3 Oct 2023
- Kiliru v Proctor & Allan (EA) Limited (Cause 231 of 2021) [2023] KEELRC 2496 (KLR)[2023] KEELRC 2496 (KLR)3 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Angela Gwiyo Kuria v Schenker Limited [2020] KEELRC 1345 (KLR)", Case Analysis (2020). Cause No 1111 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1345/eng@2020-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.