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ELRCDismissedCause No 416 of 2015· [2021] KEELRC 107 (KLR)

Samira Schwarz v Farzana Nauranga & 2 others [2021] KEELRC 107 (KLR)

Employment and Labour Relations Court
20 December 2021
2,502 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee claiming constructive dismissal in Kenya must prove, with documented evidence, a direct link between toxic working conditions and her resignation.

What this practically means

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Executive summary

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The Claimant, employed as a Manager from about July 2012 at the Respondents' restaurant and bar business (Aqua Blu Club & Lounge Bar, trading under Afri-Ventures International Limited), sued in March 2015 claiming constructive dismissal and terminal dues of Kshs. 7,840,288/- covering salary arrears, leave, service charge, holidays, overtime and maternity leave, plus a declaration that her July 2014 resignation amounted to unfair constructive termination. She alleged constant verbal abuse by the 3rd Respondent and repeated salary delays. The Respondents denied employing her personally (asserting the separate legal entity of Afri-Ventures International Limited), asserted a monthly wage of Kshs. 100,000/- on an all-inclusive basis, and counterclaimed Kshs. 100,000/- in lieu of notice, alleging she resigned without written notice. After hearing the Claimant and the Respondents' witness and considering rival submissions, the court held that although there was a poor work environment due to frequent salary delays, the alleged verbal abuse was not evidenced by any memos or complaints, the Claimant was in fact granted maternity leave, and she could not link her resignation to the alleged maltreatment. Her claimed salary of Kshs. 150,000/- was also unproved, her own statements showing Kshs. 75,000/-. The suit was therefore unproved to the required standard and dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the Claimant proved constructive dismissal

Holding

Constructive dismissal not established; no evidence of verbal abuse and no nexus between resignation and maltreatment

Reasoning

The court accepted there was a poor work environment due to frequent salary delays, but found no evidence of constant verbal abuse - the Claimant failed to record complaints through memos or letters to HR. Claims of discrimination on account of maternity failed because she was actually granted maternity leave. Having resigned, she could not link her resignation to the alleged maltreatment by the directors, so the suit failed to meet the required standard of proof.

p. 3
02

Whether the Claimant proved a monthly salary of Kshs. 150,000/-

Holding

Not proved; her own statements showed Kshs. 75,000/-

Reasoning

Although the Claimant claimed a net salary of Kshs. 150,000/- per month, her bank statements and other documents only evidenced Kshs. 75,000/-. The court noted this failure of proof as part of its assessment of the evidence, contributing to the dismissal of the claim for salary-based terminal dues.

p. 1

Legal principles established

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  • Constructive dismissal requires the employer to have made the work environment so toxic that resignation is the only way out, and the employee must establish a nexus between the resignation and the employer's breach

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 49(1)(c)
  • Employment ActSection 35
  • Evidence ActSections 107 and 108
  • Companies Act (re repealed, Chapter 486, Laws of Kenya)Not specified

Cases cited (15)

  • Jackson Gona Konde v Ayoob Noor Mohammed & Company Limited
    [2017] eKLR
  • Maureen Wanjiru Mwangi v Blue Sea Energy Limited
    [2020] eKLR
  • Milton M Isanya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • Unilever Tea (K) Ltd v Joseph Ondiek Mogaka
    [2016] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Milkah Khakayi Kulati v Sandstorm (Africa) Limited
    [2014] eKLR
  • Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
    [2019] eKLR
  • Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another
    [2016] eKLR
  • Meshack Kiio Ikulume v Prime Fuels Kenya Limited
    [2013] eKLR
  • Victor Mabachi & Another v Nurtun Bates Limited
    [2013] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kasai Ligaga
    [2015] eKLR
  • Herbert Wafula Waswa v Kenya Wildlife Services
    [2020] eKLR
  • Peter Mwanei v Kiu Construction Company Ltd
    [2019] eKLR
  • Dennis Maisiba v Economic Industries Limited
    [2020] eKLR
  • Carolyne Ondiri Sheunda & 7 Others v Top Rank Industries Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (suit for constructive dismissal and terminal benefits; specific provision not stated)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samira Schwarz v Farzana Nauranga & 2 others [2021] KEELRC 107 (KLR)", Case Analysis (2021). Cause No 416 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/107/eng@2021-12-20

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