Burendwa Secondary School v Ashikhoba (Employment and Labour Relations Appeal 18 of 2023) [2023] KEELRC 1704 (KLR)
The bottom line
#A Kenyan employee who stops working but keeps accepting salary without resigning loses any constructive dismissal claim.
What this practically means
#Executive summary
#Key legal issues
#Underpayment claim and reliance on unproduced gazette notices
The claim for underpayment was not proved; the magistrate erred in treating the respondent as a Cashier when his contract was for Accounts Clerk/Bursar, and the underpayment award was set aside.
The court found the gazette notices did not provide for the position of Accounts Clerk/Bursar and the magistrate had no proof the accounts clerk position was equivalent to cashier. Judicial notice of published gazette notices was acceptable, but the substantive error was mischaracterising the claimant's position. The court held the claim for underpayment was not proved on a balance of probabilities and set the award aside in its entirety.
Whether the respondent was constructively dismissed
No. Constructive dismissal could not have occurred where the employee absconded duty, continued to receive salary, and never resigned.
Applying the Coca Cola principles, the court held that even if the employer's conduct were hostile, the employee was required to resign within a reasonable time specifying that the resignation was occasioned by the employer's conduct. The respondent never resigned; he absconded, kept earning salary, and merely filed suit. Filing suit does not terminate employment; his conduct amounted to absconding, a gross misconduct ground under section 44(4)(a) of the Employment Act, and he waived and acquiesced in the employer's conduct.
The award of 12 months' salary as compensation for unfair termination
The award was premature and erroneous as there was no termination by either party; no cause of action existed.
Having found no constructive dismissal, the employment relationship was still in force when the trial court decided the case. The employee was himself in breach for absconding duty and could have been summarily dismissed upon due process. The compensation for unfair termination had no foundation and was set aside.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses.
- For a constructive dismissal claim to stand, the employee must tender resignation within a reasonable time; failure to resign and continued receipt of salary amounts to absconding and waiver of the claim.
- A court cannot rewrite an employment contract or substitute its own view of an employee's position where a written contract exists.
- Acceptance of salary while absent from work denotes continued existence of the employment contract and waives the claim of constructive dismissal.
- The burden of proving constructive dismissal lies on the employee on a balance of probabilities.
Court orders
#- 1.The judgment of the Hon. Eric Malesi delivered on 8th July 2022 in Kakamega MELRC Cause No. 10 of 2020 is set aside.
- 2.In place thereof judgment is entered dismissing the claim dated 30th January 2020.
- 3.No order as to costs in the lower court and in this appeal.
- On appeal from
- Magistrates Court (Employment and Labour Relations Court, Kakamega)
- Kakamega MELRC No. 10 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over appeal from the trial magistrate's court (Memorandum of Appeal dated 3rd August 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Burendwa Secondary School v Ashikhoba (Employment and Labour Relations Appeal 18 of 2023) [2023] KEELRC 1704 (KLR)", Case Analysis (2023). Kakamega High Court Appeal (from Kakamega MELRC No. 10 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1704/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.