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ELRCPartially AllowedMemorandum of claim dated 2nd October 2017 (number not stated)· [2022] KEELRC 652 (KLR)

Deepesh Subshaschandra Modi v Pan Africa Express Transport (Licensee of the Federal Express Corp) [2022] KEELRC 652 (KLR)

Employment and Labour Relations Court
10 February 2022
AMANNA NGIBUINI MWAURE
2,954 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 failing to support and respect a new employee — even during probation — is constructive dismissal, awarding two months' salary and costs.

What this practically means

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Executive summary

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The Claimant, headhunted through Hallmark Recruitment from a comfortable position in Mombasa, was engaged by the Respondent as Regional Financial Controller East Africa at a gross salary of Kshs.885,836/= and reported to work on 3rd July 2017. He alleged that he was never inducted, lacked an office and laptop for weeks, was allocated an unroadworthy vehicle, had his reporting structures changed, was barred from dealing with the Kenyan Managing Director, received demeaning emails copied to staff, and ultimately had his office reassigned, making the working environment hostile so that he left on 31st August 2017. He claimed 12 months' gross salary (Kshs.10,630,032/=) plus declarations for unfair treatment, costs and interest. The Respondent denied the claims, asserting the Claimant absconded during probation without giving the contractual 7 days' notice, and counterclaimed Kshs.206,695/= in lieu of notice. The court framed three issues: abscondment versus constructive dismissal, entitlement to reliefs, and the counter claim. Relying on Coca Cola v Maria Kagai, Kenneth Kimani Mburu and Joan Maliga Dalia, the court found the Respondent unprepared for the Claimant, changed his role and reporting lines, and failed to support or respect him, holding that such failure rendered the workplace untenable. Probationary status did not defeat the claim. The court entered judgment for the Claimant, awarded two months' salary (Kshs.1,771,672/=) with interest from judgment and costs, held this award sufficient to cover the damages claim for unfair treatment, and declined the Respondent's counter claim.

Key legal issues

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01

Whether the Claimant absconded or was constructively dismissed

Holding

Constructive dismissal established; the Respondent's probation argument was not upheld

Reasoning

The court found the Respondent headhunted the Claimant but was unprepared for his onboarding - no office, laptop, organigram or agreed salary - and later changed his reporting lines and duties while subjecting him to demeaning emails. His attempts to engage management went unanswered. Leaving during probation did not defeat the claim, since fundamental breach entitles an employee to abandon employment.

p. 4
02

Entitlement to compensation

Holding

Two months' gross salary awarded instead of the 12 months sought

Reasoning

Distinguishing Coca Cola v Maria Kagai where the employee had over five years' service and received nine months, the court held that with only two months' service, two months' compensation was fair and reasonable, and that this award also covered the claim for damages for unfair and discriminatory treatment.

p. 5
03

Respondent's counter claim for payment in lieu of notice

Holding

Counter claim declined

Reasoning

Having found constructive dismissal, the court held the Claimant was not obliged to give the 7 days' termination notice stipulated in the contract, so the Respondent's counter claim of Kshs.206,695/= equivalent to notice could not stand.

p. 5

Legal principles established

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  • Failure to support, facilitate and respect an employee is sufficient to render the workplace untenable and amount to constructive dismissal
  • Constructive dismissal can be established even during a probationary period; employment need not have been long

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for constructive dismissal
  2. 2.Award of Kshs.1,771,672/= being 2 months' gross salary as compensation for loss of employment
  3. 3.Interest at court rates from the date of judgment until full payment
  4. 4.Costs of the suit awarded to the Claimant
  5. 5.Counter claim of Kshs.206,695/= declined

Authorities

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Legislation

  • Constitution of Kenya, 2010Section 41 (as cited by Claimant); Articles 159(2)(d) and 48
  • Employment Actnot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (4)

  • COCA COLA EAST AND CENTRAL AFRICA VS MARIA KAGAI LIGAGA
    (2015) eKLR
  • KENNETH KIMANI MBURU VS SAIDI EMMERICHU AND ANOTHER
    ELR 339/2011
  • SIMON NGUGI KAMAU VS SILPACK INDUSTRIES LIMITED
    (2015) eKLR
  • JOAN MALIGA DALIA VS RUBYCUT GARDENS LIMITED
    Case No.1902 of 2017
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act regime)

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, "Deepesh Subshaschandra Modi v Pan Africa Express Transport (Licensee of the Federal Express Corp) [2022] KEELRC 652 (KLR)", Case Analysis (2022). Memorandum of claim dated 2nd October 2017 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/652/eng@2022-02-10

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