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ELRCDismissedCause No 302 of 2020· [2021] KEELRC 682 (KLR)

George Oketch v Altron Bytes Kenya Limited [2021] KEELRC 682 (KLR)

Employment and Labour Relations Court
21 October 2021
MNMathews N. Nduma
1,339 words in judgment
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The bottom line

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The Employment Court ruled the manager resigned voluntarily, so his unfair dismissal claim failed and he received no compensation or notice pay.

What this practically means

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Executive summary

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The claimant, formerly Business Development Manager, was employed on 24 September 2010 by Altech Stream East Africa Limited and transferred on 1 November 2018 to the respondent, Bytes Technology Group Kenya Limited, with an annual consolidated salary later reviewed upward by 5%. After a new Managing Director arrived, the claimant testified that in November 2019 he was told the company faced economic challenges and was given the option of resigning or being laid off; he resigned by letter dated 11 November 2019 on condition his 12 years of service be considered in his exit package. He sued for a declaration of unlawful and unfair dismissal, reinstatement or 12 months' salary as compensation, notice pay, unpaid leave, unpaid commissions, a certificate of service, costs and interest. The respondent filed a defence admitting the employment but denying coercion, and did not attend the hearing. The court, per Mathews N. Nduma, Judge, examined the resignation letter and found no complaint of coercion; it recorded the claimant's own statement that both parties concurred the resignation was in the respondent's best interest. It held the claimant failed to discharge the burden under Sections 107 and 108 of the Evidence Act to prove unlawful or unfair termination, and that he voluntarily resigned. He was therefore not entitled to compensation under Section 49(1)(c) of the Employment Act, 2007, nor notice pay under Section 36, and the respondent had paid all terminal benefits and issued a certificate of service. The suit was dismissed in its entirety, but, in view of the claimant's excellent service, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the claimant's resignation amounted to unlawful and unfair termination (constructive dismissal)

Holding

The claimant voluntarily resigned; no coercion or unlawful conduct by the respondent was proved

Reasoning

The resignation letter of 11 November 2019 contained no complaint of coercion or false pretenses; it referred only to a discussion on economic times and stated both parties concurred the resignation was in the respondent's best interest. The respondent accepted the resignation and paid outstanding commission. The respondent did not participate in the hearing, but the documentary evidence did not support the claim of being duped. The court therefore found the resignation voluntary.

p. 2
02

Entitlement to compensation, notice pay and terminal benefits

Holding

No compensation, notice pay or unpaid benefits were due; all terminal benefits and a certificate of service had been issued

Reasoning

Having found a voluntary resignation, the court held the claimant was not entitled to compensation under Section 49(1)(c) of the Employment Act, 2007, nor to notice pay under Section 36 or the contract. Payslips showed he was a member of a pension fund, and the respondent demonstrated payment of salary for days worked, leave not taken, accumulated commission and issuance of a certificate of service.

p. 3

Legal principles established

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  • An employee who alleges constructive or coerced dismissal bears the burden of proving it on a balance of probabilities under Sections 107 and 108 of the Evidence Act
  • A resignation letter that records no complaint of coercion cannot be recast as an unlawful dismissal on subsequent testimony

Court orders

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  1. 1.The suit is dismissed in its entirety
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Evidence Act, Cap. 80 Laws of KenyaSections 107 and 108
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 36
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (claim for unfair/unlawful dismissal and terminal benefits); no specific constitutional or statutory provision invoked in the judgment

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, "George Oketch v Altron Bytes Kenya Limited [2021] KEELRC 682 (KLR)", Case Analysis (2021). Cause No 302 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/682/eng@2021-10-21

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