Benjamin Biko Mongatte v Rubycut Enterprises Limited also trading as Rubycut Gardens [2021] KEELRC 1872 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Constructive dismissal
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.
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.
Unfair termination under section 45
The constructive dismissal amounted to unfair termination because the Respondent never entered appearance and thus never discharged its burden under section 45.
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.
Assessment of reliefs
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.
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Claimant: one month salary in lieu of notice of Kshs. 15,000
- 2.Four months' salary compensation for unfair termination of Kshs. 60,000
- 3.Leave pay for one year of 24 days, Kshs. 13,846.15
- 4.Total award of Kshs. 88,846.15 subject to statutory deduction
- 5.Certificate of Service to be issued to the Claimant under section 51 of the Employment Act
- 6.Costs of the suit to the Claimant
- 7.Interest at court rate from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Leopard Beach and Spa v Imbochi (Appeal 21 of 2020) [2023] KEELRC 1256 (KLR)[2023] KEELRC 1256 (KLR)20 Apr 2023
- Leopard Beach and Spa v Imbochi (Appeal 21 of 2020) [2023] KEELRC 1256 (KLR)[2023] KEELRC 1256 (KLR)20 Apr 2023applied
Cite this brief
#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.