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ELRCDismissedPetition No 89 of 2018· [2020] KEELRC 1696 (KLR)

Fanuel John Emodo v China Qingjian International Group (Kenya) Limited [2020] KEELRC 1696 (KLR)

Employment and Labour Relations Court
7 February 2020
MOMAUREEN ONYANGO
2,455 words in judgment
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The bottom line

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The Employment Court dismissed a mechanic's claim for unfair dismissal and underpayment, ruling he absconded and that employment disputes must be filed as ordinary claims, not constitutional petitions.

What this practically means

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Executive summary

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The petitioner, a mechanic employed by the respondent road construction company on a 17-month fixed-term contract dated 1st February 2018 at Kshs.30,160 basic salary, filed a constitutional petition alleging that he was engaged on terms inferior to his Grade 1 mechanic qualifications, that the respondent concealed a CBA registered on 31st January 2018, and that he was unfairly dismissed on 11th July 2018 after repairing a stalled tipper at Kikuyu Road. He sought Kshs.949,497/825 in unpaid remuneration and benefits, constitutional damages, a certificate of service, interest and costs, invoking Articles 19, 20, 27 and 41 of the Constitution and various Employment Act provisions. The respondent, through replying affidavits of Director Yuan Shuxin and HR Manager Qi Dong, denied any dismissal, contending the petitioner absconded after 10th July, that the CBA formed part of his terms and was acknowledged in writing, that pay sheets he signed proved overtime payment, and that the vacancy was for a Grade 2 mechanic which he accepted. The respondent also objected that the ELRC was an improper forum for rights enforcement under Article 165(3)(b). The court, Maureen Onyango J, held the petition failed to demonstrate any constitutional violation, being purely a contractual employment claim, and applying Harrikissoon v Attorney-General of Trinidad and Tobago, found it vexatious and an abuse of process. On the merits, the court found no dismissal, that the petitioner absconded, that overtime was paid per signed pay sheets, and that salary conformed to the CBA. The petition was dismissed with costs to the respondent on 7th February 2020.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition

Holding

It did not; the claim was purely contractual and the petition was vexatious and an abuse of process

Reasoning

The court held that beyond citing constitutional provisions, the petitioner demonstrated no violation of rights and no connection between his facts and those provisions. Following Harrikissoon v Attorney-General of Trinidad and Tobago, the court held constitutional jurisdiction should not be misused as a substitute for ordinary procedures, and that an employment contract claim belongs in a memorandum of claim.

p. 5
02

Whether the petitioner was unfairly dismissed

Holding

No; the petitioner was not dismissed but absconded duty

Reasoning

The court relied on the respondent's documents and the affidavits of the petitioner's co-workers, which showed no dismissal occurred and that the petitioner stopped reporting to work. The claim of verbal termination was therefore unproven.

p. 5
03

Whether the petitioner was underpaid contrary to the CBA

Holding

No; pay sheets proved overtime payment and salary conformed to the CBA

Reasoning

Pay sheets signed by the petitioner before salary processing demonstrated payment for overtime. His contract set out his salary with no reference to a Grade 1 trade test certificate, and he did not show he disclosed the certificate or agreed Grade 1 pay at engagement. The vacancy was for a Grade 2 mechanic, which he applied for and accepted.

p. 5

Legal principles established

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  • A constitutional petition cannot be used as a general substitute for ordinary employment claims; mere allegation of breach of a right does not invoke constitutional jurisdiction
  • An employee cannot claim remuneration commensurate with qualifications he never disclosed or that were never agreed

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19(1) and (4), 20(3) and (4), 27(1) and (2), 41(1) and (2), 165(3)(b)
  • Employment ActPreamble, Sections 3(6), 7, 8, 9, 10, 11, 12, 13, 14, 20, 21, 41, 45
  • Employment and Labour Relations Court (Procedure) Rules 2016Not specified

Cases cited (1)

  • Harrikissoon v Attorney-General of Trinidad and Tobago
    [1980] A.C. 202
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; respondent challenged forum under Article 165(3)(b) of the Constitution of Kenya 2010

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, "Fanuel John Emodo v China Qingjian International Group (Kenya) Limited [2020] KEELRC 1696 (KLR)", Case Analysis (2020). Petition No 89 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1696/eng@2020-02-07

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