Francis Makori v Bob Morgan Services Limited [2021] KEELRC 65 (KLR)
The bottom line
#The Employment Court dismissed a worker's claim that he was forced to resign, because he could not prove it with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant proved that he was terminated by the respondent
The claimant failed to discharge the burden under section 47(5) of proving termination; no termination letter was produced and no inference of termination could be drawn
Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee, consistent with the Court of Appeal decision in Pius Machafu Isindu v Lavington Security Guards Limited. The claimant produced no termination letter and instead asserted he was forced to resign. Having failed to establish termination as a fact, no obligation arose on the employer to justify any grounds for termination.
Whether the claimant's resignation constituted constructive dismissal
No constructive dismissal was proved; the resignation letter cited personal problems, made no reference to frustrations by the respondent, and no repudiatory breach was established
Applying the Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga principles, the court found the claimant's resignation letter sought time out to settle personal (land and family) problems and did not attribute his exit to any conduct of the employer. No evidence of repudiatory breach going to the root of the contract was adduced, and the objective test for the employer's conduct was not satisfied.
Whether the claimant's resignation was induced or forced by Mr. Ochuku of the respondent
The allegation of inducement was unsubstantiated; no particulars of duress were furnished and the claimant had recourse to management which he never exercised
Relying on Wenslaus Oduki Odinga v Kenyatta National Hospital Board, the court held that an employee alleging duress must provide particulars beyond a bare assertion of being forced. The claimant said he resigned out of fear of a senior officer, but the court found this implausible since resignation was the ultimate act of severing employment, and he never complained to or sought intervention from the respondent's management.
Whether the claimant was entitled to service pay
Service pay was not payable because it applies only on termination by notice, and section 35(6) excludes NSSF-contributing employees
Section 35(5) of the Employment Act makes service pay payable only where termination is pursuant to notice, which did not occur here as the claimant resigned. Additionally, section 35(6) excludes employees who contribute to the NSSF, and the claimant admitted contributing to the NSSF.
Entitlement to a certificate of service
The claimant is entitled to a certificate of service under section 51(1) of the Employment Act since the employment relationship was admitted
The court observed that the employment relationship having been admitted, the claimant was entitled to a certificate of service under section 51(1) of the Employment Act, notwithstanding the dismissal of the claim in its entirety.
Legal principles established
#- Under section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination or wrongful dismissal; only when that foundation is laid does the employer justify the grounds for termination
- An employee alleging duress or inducement to sign or tender a document must give particulars; it is not enough to merely allege being forced
- The criterion for constructive dismissal is repudiatory breach of contract through the employer's conduct, and the burden of proof lies with the employee
Court orders
#- 1.The claim is dismissed in its entirety
- 2.No orders as to costs
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied; no express provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Makori v Bob Morgan Services Limited [2021] KEELRC 65 (KLR)", Case Analysis (2021). Cause No 650 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/65/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.