Wambua & 15 others v W.E Tilley (Muthaiga) Limited (Cause 441 of 2016) [2022] KEELRC 1246 (KLR)
The bottom line
#A Kenyan court ruled that locking workers out and failing to pay them amounted to constructive dismissal, awarding them compensation, notice pay, and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were constructively dismissed or declared redundant
The Claimants were constructively dismissed; they were not declared redundant and the frustration argument failed because the respondent did not follow the redundancy process
Applying the contractual test in Coca Cola v Ligaga and Western Excavating v Sharp, the closure of the gates after December 7, 2015, non-payment of salaries and the employer's silence constituted repudiatory breach going to the root of the contract. No redundancy was declared; even if frustration occurred, the respondent should have notified employees and the Labour Officer and complied with section 40. The respondent did not apply its mind to the consequences of its conduct.
Entitlement to salary for December 2015 and January 2016
Declined for periods after December 7, 2015; salary awarded only for the 7 days worked in December
CW1 confirmed on cross-examination that none of the Claimants worked after December 7, 2015. Since no services were rendered thereafter, no salary was payable for December 2015 beyond the 7 days or for January 2016.
One month's salary in lieu of notice
Awarded as the requisite notice under section 35 was not given
The respondent failed to give the statutory notice of termination required by section 35 of the Employment Act, so compensation in lieu is payable under section 36.
Compensation for constructive dismissal
Awarded under section 49(1)(c) on a graduated basis of 4 to 7 months' gross salary depending on length of service
The court considered duration of employment, the Claimants' willingness to continue working, absence of disciplinary issues, and the destabilising court order in HCCC No. 522 of 2015. Employment dates pleaded were taken as proved since the respondent produced no contradicting evidence.
Certificate of service
A statutory entitlement under section 51(1) of the Employment Act; to be issued within 30 days
Although the respondent claimed it had dispatched certificates of service to its advocates, the Claimants had not received them. Section 51(1) makes issuance a statutory entitlement.
Legal principles established
#- Closure of premises coupled with non-payment of salaries and employer silence amounts to a repudiatory breach entitling employees to treat themselves as constructively dismissed
- The employer bears a heavy burden to justify termination of employment
Court orders
#- 1.Salary for 7 days worked in December 2015
- 2.Compensation: 1st, 2nd, 3rd, 9th and 14th Claimants awarded equivalent of 7 months' salary; 4th, 5th, 8th and 13th Claimants equivalent of 6 months' salary; 10th, 11th, 12th and 16th Claimants equivalent of 5 months' salary; 6th, 7th and 15th equivalent of 4 months' salary
- 3.Certificate of service to be issued within 30 days of the judgment
- 4.Costs of the suit to the Claimants
- 5.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambua & 15 others v W.E Tilley (Muthaiga) Limited (Cause 441 of 2016) [2022] KEELRC 1246 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1246/eng@2022-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.