Otieno v United Millers Limited (Cause 77 of 2019) [2022] KEELRC 1428 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the stoppage of the Claimant's salary amounted to a termination
Yes - the employer's silence and stoppage of salary constituted an implied termination, and the assertion that the Claimant was never terminated does not hold.
The court found the Respondent was fully aware of the Claimant's ailment and visual impairment, having received her letter of 23rd August 2016. Despite this, the Respondent stopped her salary without notice, without reasons, and without any response to her letter. RW1 confirmed no outreach was made. The court held that an employer's silence upon stoppage of salary is an implied termination, rejecting the Respondent's claim of 'no work no pay'.
Whether the termination was procedurally and substantively unfair
Yes - the termination fell short of Sections 41, 43, 45 and 47 of the Employment Act, 2007.
The employer neither gave the Claimant notice nor reasons for the stoppage of her salary/termination, nor was she accorded a hearing despite her illness and long service. The court relied on authority that an employer must reasonably accommodate an ill employee beyond sick leave and, where termination is inevitable, give specific notice of impending termination. The termination was therefore both procedurally and substantively unfair.
Whether the Claimant was entitled to the remedies sought
Partially - 12 months' compensation (maximum), one month's salary in lieu of notice, Kshs.3,000,000 exemplary damages and a certificate of service were granted; three months' notice pay was refused.
Having declared the termination unfair, the court awarded maximum compensation under Sections 49 and 50 considering the Claimant's visual impairment, limited chances of alternative employment and long service. Notice pay was capped at one month per the contract. Exemplary damages were awarded because the Respondent's silence on learning of the Claimant's blindness caused distress and anxiety and violated her right to non-discrimination on the basis of health.
Legal principles established
#- Silence on the part of an employer upon stoppage of an employee's salary amounts to an implied termination.
- An employer has an obligation to reasonably accommodate an employee taken ill during employment, beyond grant and exhaustion of sick leave.
- Termination without notice and reasons falls short of the procedural and substantive fairness requirements of Sections 41, 43, 45 and 47 of the Employment Act.
- Exemplary damages may be awarded for discriminatory acts suffered by an employee in employment, in addition to compensation for unfair termination, where the conduct caused distress and intolerable anxiety.
Court orders
#- 1.A declaration that the Claimant's termination is unfair.
- 2.One-month salary in lieu of notice at Kshs.97,020.00/-
- 3.12 months' salary as compensation for unfair termination at Kshs.1,164,240/-
- 4.Kshs.3,000,000/- in exemplary damages
- 5.A certificate of service.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v United Millers Limited (Cause 77 of 2019) [2022] KEELRC 1428 (KLR)", Case Analysis (2022). Cause No 77 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1428/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.