Wanyahora v Mediamax Network Limited (Petition E030 of 2020) [2022] KEELRC 66 (KLR)
The bottom line
#Kenya's Employment Court ruled that Covid-19 disruptions excused an employer's delayed salaries, and a pandemic-forced resignation does not count as constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Binding effect of the consent judgment in Petition No. 59 of 2020
The Petitioner is bound by the consent judgment and orders of 10th June 2020 in Petition No. 59 of 2020 despite claiming he never authorised the petitioners therein
The court had recently found that disputes arising from the redundancy at the Respondent's business were compromised in Petition No. 59 of 2020 through a consent judgment. Other petitions by employees caught in the same redundancy were declared compromised. The Petitioner, alleging he did not donate authority, never applied to have his name struck out from that petition, so he remains bound by its orders.
Whether delayed salary payment violated Articles 41 and 30
The delay in paying salaries did not violate Article 41 and did not amount to slavery, servitude or forced labour
The Respondent demonstrated that Covid-19 adversely affected its business worldwide. It took measures to stay afloat, including proposing pay cuts, and the employees went to court, resulting in a consent judgment endorsing redundancy. Delayed salaries were eventually paid. Given the known financial difficulties occasioned by the pandemic, it was not reasonable for an employee to insist on full salary as it fell due.
Constructive dismissal
The Petitioner's resignation did not amount to constructive dismissal
It is a misapprehension of constructive dismissal to attribute workplace circumstances created by external factors such as a pandemic to the employer. The Respondent did not create the unbearable work environment. Although the Petitioner may not have resigned voluntarily, he was compelled by Covid-19, an unexpected external force, not by the Respondent, as elucidated in the Coca Cola v Ligaga decision.
Whether resignation amounted to unfair or unlawful termination
The resignation did not amount to unfair or unlawful termination
The Petitioner resigned because he disagreed with the measures the Respondent took in response to Covid-19. By the time of his resignation on 1st July 2020, the court had already decreed that parties were free to disengage through redundancy, and the Petitioner could have opted to exit through redundancy instead of resigning.
Legal principles established
#- An employee who was caught up in a redundancy situation compromised by a consent judgment in a co-employees' petition is bound by the orders in that petition unless he moves the court to be struck out of it
- Circumstances at the workplace created by external factors such as a pandemic cannot be attributed to the employer for purposes of constructive dismissal
- No employer liability arises for delay in contractual obligations occasioned by an act of force majeure such as Covid-19
Court orders
#- 1.The Petition is declined
- 2.No order on the costs
- Jurisdiction invoked
- Original constitutional jurisdiction of the Employment and Labour Relations Court over alleged violations of Articles 30, 41 and 47 of the Constitution read with the Employment Act and Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanyahora v Mediamax Network Limited (Petition E030 of 2020) [2022] KEELRC 66 (KLR)", Case Analysis (2022). E&LRC Petition (amended 28th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/66/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.