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ELRCPartially Allowed· [2021] KEELRC 1872 (KLR)

Benjamin Biko Mongatte v Rubycut Enterprises Limited also trading as Rubycut Gardens [2021] KEELRC 1872 (KLR)

Employment and Labour Relations Court
8 April 2021
1,343 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 that an employer whose abusive conduct forced a waiter to resign had unfairly dismissed him, awarding Kshs. 88,846.15 plus costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Waiter from March 2012 on a monthly salary of Kshs. 15,000, alleged constructive dismissal on 22 December 2015 following a hostile work environment created by the Respondent's director, including verbal vulgar insults, false accusations, threats of dismissal, and physical assaults with a belt and slaps, the last of which loosened his teeth and led him to report the matter at Kilimani Police Station before resigning. He also claimed unpaid accrued leave, holiday pay for working 13-hour days including public holidays, house allowance, compensation for unfair termination, and a certificate of service. The Respondent filed no defence or appearance, so the suit proceeded by way of formal proof on 21 January 2021, with the Claimant testifying as CW1. Applying the Court of Appeal's decision in Coca Cola East and Central Africa Ltd v Maria Kagai Ligaga, the court found the Claimant's unrebutted evidence established constructive dismissal on a balance of probability. Because the Respondent never entered appearance, it failed to discharge its burden under section 45 of the Employment Act to prove a valid reason and fair procedure; the constructive dismissal was therefore unfair termination. The court awarded one month's notice pay (Kshs. 15,000), four months' compensation (Kshs. 60,000) given about 3½ years of service without any warning letter, and one year's leave pay of 24 days (Kshs. 13,846.15), totalling Kshs. 88,846.15 subject to statutory deduction. The holiday pay claim failed for lack of particulars and evidence, and the house allowance claim failed because salary vouchers showed the pay was gross. The certificate of service was granted as a statutory right under section 51, together with costs and interest at court rate from the date of judgment.

Key legal issues

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01

Constructive dismissal

Holding

The Claimant proved on a balance of probability that the Respondent's director's abusive and violent conduct made the work environment intolerable, forcing his resignation, amounting to constructive dismissal.

Reasoning

The court adopted the Court of Appeal's articulation of constructive dismissal in Coca Cola v Ligaga, noting the concept is not statutorily defined. Since the Respondent filed no defence, the Claimant's evidence stood unrebutted: persistent insults, threats, and physical assaults culminating in a slap on 22.12.2015 forced him to report to police and resign. That employer conduct, not employee conduct, was in issue satisfied the doctrine.

p. 2
02

Unfair termination under section 45

Holding

The constructive dismissal amounted to unfair termination because the Respondent never entered appearance and thus never discharged its burden under section 45.

Reasoning

Section 45 places the burden of justifying termination on the employer, requiring proof of both valid reason and fair procedure. The Respondent's default meant neither element was established. The court therefore agreed with the Claimant that the constructive dismissal was unfair termination, opening the door to remedies under section 49.

p. 3
03

Assessment of reliefs

Holding

Notice pay and four months' compensation awarded given 3½ years of service without any warning; one year's leave pay awarded; holiday pay and house allowance claims dismissed; certificate of service granted as a statutory right.

Reasoning

Compensation was calibrated to length of service and the absence of warnings. Leave in the hotel industry is capped at 24 days per year and cannot accumulate without employer consent, so only one year was awarded. Holiday pay failed for want of particulars; house allowance failed because the salary was gross pay. The certificate of service is a right under section 51.

p. 3

Legal principles established

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  • In constructive dismissal, the issue is primarily the conduct of the employer, and an employer must not behave in a way that amounts to repudiatory breach of contract.
  • Termination of employment is unfair if the employer fails to prove a valid and fair reason and a fair procedure.

Court orders

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  1. 1.Judgment entered for the Claimant: one month salary in lieu of notice of Kshs. 15,000
  2. 2.Four months' salary compensation for unfair termination of Kshs. 60,000
  3. 3.Leave pay for one year of 24 days, Kshs. 13,846.15
  4. 4.Total award of Kshs. 88,846.15 subject to statutory deduction
  5. 5.Certificate of Service to be issued to the Claimant under section 51 of the Employment Act
  6. 6.Costs of the suit to the Claimant
  7. 7.Interest at court rate from the date of judgment

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 49
  • Employment Actsection 51
  • Employment (General) Regulations (regulations on leave in the hotel industry)24 leave days per year
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Coca Cola East and Central Africa Ltd v Maria Kagai Ligaga
    [2015]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Benjamin Biko Mongatte v Rubycut Enterprises Limited also trading as Rubycut Gardens [2021] KEELRC 1872 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1872/eng@2021-04-08

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