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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1517 (KLR)

Maina v Chemserve Cleaning Services Ltd (Cause E485 of 2020) [2023] KEELRC 1517 (KLR)

Employment and Labour Relations Court
16 June 2023
BOByram Ongaya
1,807 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that suspending an employee indefinitely, withholding her salary, and delaying discipline forced her resignation — and the employer must pay for it.

What this practically means

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Executive summary

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The claimant, employed by the respondent in August 2018 as Operations Manager on a two-year fixed-term contract at Kshs.120,000 per month, was declared Persona Non Grata at BAT premises in January 2020 over complaints including delayed staff salaries and lack of PPEs. The respondent placed her on paid suspension in February 2020 pending investigations and a disciplinary hearing scheduled for 10.03.2020. The hearing did not take place; the claimant requested the investigation report, which was forwarded on 23.03.2020 after COVID-19 protocols prevented an in-person hearing. The respondent then directed her on annual leave effective 01.04.2020, later treating her as on indefinite unpaid leave, and withheld her April 2020 salary. The claimant resigned on 04.06.2020, citing work-related frustrations, and sued for constructive unfair termination and various reliefs. The respondent denied constructive termination, contending she resigned to defeat the disciplinary process and waived her right to it. The court held that the employer bears disciplinary control and could not shift the duty to convene the hearing to the claimant; that unilaterally imposing leave and withholding salary during a pending disciplinary process was procedurally unfair under section 45 of the Employment Act and a fundamental breach. The resignation was held to amount to unfair constructive termination. The court declared the claimant constructively dismissed, awarded two months' salary (Kshs.240,000) as compensation under section 49, plus Kshs.272,000 unpaid salary, totaling Kshs.512,000 less PAYE, with interest and costs of the suit. Claims for untaken leave days and gratuity were declined as unjustified for want of pleading and evidence.

Key legal issues

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01

Whether the claimant's resignation amounted to unfair constructive termination

Holding

Yes - the respondent fundamentally breached the contract by failing to lift the suspension or conclude the disciplinary process and by imposing unpaid leave and withholding salary

Reasoning

The claimant was on paid suspension following a PNG by BAT. She requested the investigation report, which was supplied, but the respondent never convened the disciplinary hearing, blaming COVID-19 and the claimant. The court held disciplinary control is the employer's role. Instead of concluding the process, the respondent unilaterally placed her on leave and withheld April salary, amounting to unfair procedure under section 45 and a fundamental breach driving her resignation.

p. 3
02

Quantum of damages for constructive dismissal

Holding

Two months' salary (Kshs.240,000.00) awarded as just compensation under section 49 of the Employment Act

Reasoning

In assessing compensation under section 49, the court considered that only two months of the fixed-term contract remained, that a disciplinary case was pending, and took judicial notice of the COVID-19 constraints on enterprises, evidenced by the respondent's letters emplacing staff on leave.

p. 4

Legal principles established

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  • The employer bears the responsibility to convene and conclude the disciplinary process; it cannot shift that role to the employee
  • Imposing unilateral unpaid leave and withholding salary during a pending disciplinary process amounts to unfair procedure under section 45 of the Employment Act and a fundamental breach justifying constructive dismissal

Court orders

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  1. 1.Declaration that the claimant was constructively dismissed
  2. 2.Respondent to pay the claimant a sum of Kshs. 512,000.00 (less PAYE) by 01.08.2019 failing interest to be payable thereon at Court rates till full payment
  3. 3.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Maina v Chemserve Cleaning Services Ltd (Cause E485 of 2020) [2023] KEELRC 1517 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1517/eng@2023-06-16

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