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ELRCDismissedEmployment and Labour Relations Court at Nairobi, Cause (unnumbered on record as printed)· [2023] KEELRC 1735 (KLR)

Waithaka v Sunflag Textiles and Knitwear Mills Limited (Cause 336 of 2018) [2023] KEELRC 1735 (KLR)

Employment and Labour Relations Court
13 July 2023
MNMathews N. Nduma
3,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from 2009 until 2017 and last serving as Assistant Accountant in the accounts department, sued alleging that his employment was unlawfully and unfairly terminated on 6/9/2017, that he was coerced into resigning on 14/9/2017, and that he was racially discriminated against in salary compared to Asian-origin colleagues. He sought declarations of unconstitutional discrimination and unfair labour practices, payment of pecuniary losses, differential salary, terminal benefits and interest. The respondent denied discrimination and coercion, asserting the termination letter was withdrawn by mutual agreement, superseded by a resignation voluntarily tendered, with terminal benefits fully paid and acknowledged via a discharge voucher. The court framed three issues: whether the separation was by termination or resignation; whether it was lawful; and entitlement to reliefs. It found the parties mutually agreed to convert the termination into a resignation, which was accepted with enhanced benefits (gratuity added), and that coercion was not proved. On discrimination, the court applied Section 5(7) of the Employment Act, found the respondent discharged its rebuttal burden, and held the comparators held different, not equivalent, positions. Reliance was placed on Ol Pajata Ranching Ltd v David Wanjau Muhoro and the South African decision in Louw v Golden Arrow Bus Services. Claims for terminal benefits, overtime and compensation also failed as unproven. The entire suit was dismissed with each party bearing their own costs, the court noting the parties' long relationship.

Key legal issues

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01

Whether the claimant's employment ended by termination or by mutual resignation

Holding

The termination of 6/9/2017 was receded and superseded by a mutually agreed resignation on 14/9/2017 with enhanced terminal benefits

Reasoning

It was common cause that a meeting on 14/9/2017 resolved to withdraw the termination letter and accept a resignation. The resignation letter contained no grievance and thanked the respondent, and the respondent added gratuity as a further benefit. The claimant did not plead coercion in the resignation letter and failed to prove it. The separation was therefore lawful and fair.

p. 5
02

Whether the claimant was racially discriminated against in salary

Holding

The discrimination claim failed; the salary differential was attributable to different positions, not race

Reasoning

Under Section 5(7) of the Employment Act the employer bears the burden of disproving discrimination once alleged. The respondent demonstrated through R.W.1 that the comparator employees held different and not equal or equivalent positions to the claimant. The claimant also produced no evidence of any complaint of discrimination during his seven years of service.

p. 6
03

Whether the claimant proved claims for terminal benefits and overtime

Holding

Both claims failed as unproven

Reasoning

Terminal benefits were paid on 2/11/2017 upon resignation. The contract did not provide for overtime pay, the claimant never claimed overtime during his seven years of service, and he adduced no time data showing extra hours worked. Both claims therefore failed on a balance of probabilities under Sections 108 and 109 of the Evidence Act.

p. 6

Legal principles established

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  • It is not an unfair labour practice to pay different wages for equal work unless the reason is direct or indirect discrimination on arbitrary or listed grounds such as race
  • In discrimination claims under Section 5(7) of the Employment Act, once an allegation of discrimination is made, the employer bears the burden of proving discrimination did not occur as alleged
  • The ordinary burden of proof in a suit lies on the party who would fail if no evidence were given on either side

Court orders

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  1. 1.The suit by the claimant against the respondent is dismissed in its entirety
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 35, 40, 41, 50
  • Employment Act, 2007Sections 5, 5(7), 17, 18, 19, 21, 35, 41, 43, 45, 46, 49, 50
  • Evidence Act, Cap. 80 Laws of KenyaSections 108, 109

Cases cited (2)

  • Ol Pajata Ranching Limited vs David Wanjau Muhoro
    [2017] eKLR
  • Louw vs Golden Arrow Bus Services (Pty) Ltd
    [1999] ZALC 166
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes under the Employment Act, 2007 and the Constitution

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, "Waithaka v Sunflag Textiles and Knitwear Mills Limited (Cause 336 of 2018) [2023] KEELRC 1735 (KLR)", Case Analysis (2023). Employment and Labour Relations Court at Nairobi, Cause (unnumbered on record as printed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1735/eng@2023-07-13

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