Njuguna v Lochab Transport Limited (Cause 613 of 2017) [2023] KEELRC 92 (KLR)
The bottom line
#A Kenyan court ruled that an employer who quietly shut out a sick employee instead of formally firing him unfairly dismissed him, awarding Kshs 325,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was constructively dismissed
Yes - the respondent's conduct (turning him away, barring him from the premises, evading him and failing to engage him after he reported back fit for duty) amounted to a repudiatory breach entitling him to treat himself as constructively and unfairly dismissed
The court found it beyond doubt that the claimant's absence from March 2014 was due to illness, and that the respondent told him to report back once healed. When he did, he was turned away and eventually barred from the premises. The respondent produced no notice or demand for a medical report and contradicted itself between its reply and amended response. Applying the Coca Cola v Ligaga constructive dismissal principles, the employer's strategic silence amounted to unfair termination contrary to sections 41 and 43 of the Employment Act.
Remedies for unfair constructive termination
12 months' gross salary compensation under section 49(1)(c) plus one month's pay in lieu of notice; other terminal dues rejected for want of evidence
The court applied the factors in section 49(4) of the Employment Act to award the equivalent of 12 months' gross salary (Kshs 300,000) as compensation, and one month's notice pay (Kshs 25,000). Claims for service pay/gratuity, overtime, off days, public holidays and leave days were rejected because no evidence explained how they arose. Costs plus interest were awarded to the claimant, bringing the final award to Kshs 325,000.
Legal principles established
#- For a termination to be fair there must be both substantive justification and procedural fairness under sections 41 and 43 of the Employment Act
- An employer cannot remain silent and indifferent to an ailing employee; strategic silence and evasion amount to unfair termination/constructive dismissal
- Burden of proving constructive dismissal lies on the employee, but where the employer's conduct bars the employee from the workplace, the employee's account may be accepted
Court orders
#- 1.Compensation under section 49(1)(c) of the Employment Act equivalent of 12 months gross salary: 25,000 x 12 = Kshs 300,000/-
- 2.One month salary in lieu of notice: Kshs 25,000/-
- 3.Claimant to pay costs of the claim plus interest at court rates from date of judgment till full payment (awarded to claimant)
- 4.Final award to the claimant of Kshs 325,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 47(5), 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Lochab Transport Limited (Cause 613 of 2017) [2023] KEELRC 92 (KLR)", Case Analysis (2023). Memorandum of claim dated 24/2/2017, filed 30/3/2017 (ELRC cause; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/92/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.