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ELRCDismissedCause No. 447 of 2017· [2020] KEELRC 1599 (KLR)

Berard Mogaka Omwando v Comply Industries Limited [2020] KEELRC 1599 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
23 January 2020
1,760 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 an employee who resigned voluntarily and cashed his final dues cannot later claim unfair termination or unpaid benefits.

What this practically means

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Executive summary

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The claimant, employed as a machine assistant/general worker in the respondent's sawmill department from around October 2010 on a casual basis at a daily rate paid weekly, sued for notice pay, underpayments, off-duty pay, public holiday pay, leave for 9 years and 3 months, and compensation, alleging termination contrary to sections 35, 41 and 45 of the Employment Act after he fell sick and sought lighter duties. The respondent denied unfair termination, asserting the claimant resigned on medical grounds, signed a discharge voucher and was paid terminal dues of Ksh.29,417, including Ksh.33,558 (less PAYE) for 94 accrued leave days. The claimant denied authoring a resignation letter dated 29th June 2017, whose signature the court observed appeared planted. However, the court accepted a letter of 4th May 2017, a Resignation Apology seeking to leave employment on medical grounds, as authentic and in the claimant's hand. Since the medical recommendation was for deployment and further treatment rather than stoppage of employment, and the claimant then sought to resign, signed the discharge voucher, thumb-printed it and cashed the cheque, the court held his resignation was voluntary and found no unfair termination. The underpayment claim failed because an assistant machine attendant is not regulated under machine attendant wages and the daily rate of Ksh.357 exceeded the minimum wage for a general worker at Njoro. Attendance records showed no month with more than 29 days worked, defeating the rest-day, off-duty and public holiday claims, and the leave claim had been settled. All claims were dismissed with each party bearing their own costs.

Key legal issues

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01

Whether termination was unfair under sections 35, 41 and 45 of the Employment Act

Holding

No unfair termination was found; the claimant resigned voluntarily, signed the discharge voucher and accepted terminal dues

Reasoning

The court examined the alleged resignation letter dated 29th June 2017 and found the signature appeared planted, but a letter of 4th May 2017 (a Resignation Apology seeking to leave on medical grounds) was authentic and in the claimant's hand. Having submitted medical records and then sought to resign, and having accepted payment and signed the discharge voucher with a thumbprint, the claimant could not claim unawareness of the consequences of voluntary resignation. The medical recommendation was deployment, not stoppage of employment.

p. 3
02

Whether the claimant was underpaid

Holding

The underpayment claim failed; the claimant was an assistant machine attendant on general duties, and the daily rate of Ksh.357 for a general worker at Njoro was above the minimum wage

Reasoning

The court held that an assistant machine attendant assisting the principal machine attendant is not regulated under the wages payable to a machine attendant. The amended defence noted a daily rate of Ksh.357 for a general worker in Njoro, which assessed against the wage orders was above the minimum wage, so the dues were appropriately factored.

p. 3
03

Whether the claimant worked without rest days, public holidays and annual leave

Holding

The claims were unfounded on the evidence of the attendance records

Reasoning

The court assessed the work attendance sheets month by month (22 days in September 2016, 27 in May 2016, 21 in May 2015, 24 in May 2014, 14 in April 2013, 18 in April 2012, 20 in March 2011, none in March 2010) and found no attendance beyond 29 days in any month, cumulatively the most being 29 days in 2014. The claimant had also admitted being laid off on several weeks.

p. 3
04

Whether leave dues remained owing

Holding

The claim was settled; the claimant had been paid Ksh.33,558 for 94 accrued leave days

Reasoning

The respondent computed 94 accrued leave days at the daily wage, paid Ksh.33,558 less statutory deductions, and the claimant accepted it. As such the leave claim was settled and nothing arose from it.

p. 3

Legal principles established

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  • Under section 10(6) of the Employment Act, 2007, the employer is the custodian of all work records.
  • An employee who signs a discharge voucher and cashes the final dues after authoring a resignation letter is bound by the voluntary resignation and cannot later claim unfair termination.

Court orders

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  1. 1.The claims made are found without merit and are dismissed
  2. 2.Each party to pay own costs

Authorities

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Legislation

  • Employment Actsection 35
  • Employment Actsection 41
  • Employment Actsection 45
  • Employment Act, 2007section 10(6)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause No. 447 of 2017)

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, "Berard Mogaka Omwando v Comply Industries Limited [2020] KEELRC 1599 (KLR)", Case Analysis (2020). Cause No. 447 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1599/eng@2020-01-23

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