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ELRCPartially AllowedCause No 232 of 2019· [2023] KEELRC 2036 (KLR)

Araka v Schenker (Kenya) Limited (Cause 232 of 2019) [2023] KEELRC 2036 (KLR)

Employment and Labour Relations Court
18 August 2023
AMANNA NGIBUINI MWAURE
3,196 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that forcing an employee to resign through unfair treatment counts as unlawful constructive dismissal, entitling him to compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from May 2014, claimed constructive dismissal arising from a flawed disciplinary process following accusations that he threatened his supervisor, Ernest Musi. He complained of a forced polygraph test, suspension, changing charges, denial of evidence and minutes to prepare his defence and appeal, unilateral redeployment to the JKIA office with altered terms and reduced responsibilities, and denial of full paternity leave contrary to section 29(8) of the Employment Act, leading to his resignation on June 21, 2017. The Respondent admitted the employment relationship but denied unfairness, asserting the disciplinary process was fair, the transfer was a mere change of location without demotion, and that only three days' leave was granted due to workload. The court applied the contractual test for constructive dismissal from Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga, holding that the burden lies on the employee to prove a repudiatory breach. It found the Claimant was not given the specifics or evidence of accusations, which kept changing, that the transfer with altered terms was the last straw, and that denial of paternity leave contributed to an intolerable environment. All this amounted to unfair labour practice under Article 41 of the Constitution. Judgment was entered for the Claimant: compensation of four months' salary (Kshs 574,400/-), a declaration of unlawful termination, costs with interest, and a certificate of service within 30 days. Discrimination prayers were refused as unproved.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

Yes - the court found constructive dismissal based on unfair disciplinary process, forced polygraph, unilateral transfer with altered terms, and denial of paternity leave, constituting unfair labour practice.

Reasoning

The court applied the contractual test from Coca Cola v Ligaga. The Claimant was denied evidence and minutes for his defence, the accusations kept changing, he was transferred with altered terms without facilitation, denied full paternity leave contrary to section 29(8) of the Employment Act, and subjected to a polygraph without consent. These cumulatively amounted to unfair labour practice under Article 41 and pushed him to resign.

p. 6
02

Whether the Claimant is entitled to the reliefs sought

Holding

Partially - compensation of 4 months' salary awarded; discrimination prayers refused as unproved.

Reasoning

Having found constructive dismissal amounting to unfair and wrongful termination, the court awarded compensation equivalent to four months' salary considering the period worked, a declaration of unlawful termination, costs, interest, and a certificate of service, but declined the discrimination prayers.

p. 6

Legal principles established

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  • An employee is entitled to be provided with the evidence of allegations against him to enable him to prepare his defence.
  • Constructive dismissal requires proof of a repudiatory breach by the employer, with the burden on the employee.

Court orders

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  1. 1.Compensation for unlawful termination equivalent to 4 months' salary of Kshs 574,400/-
  2. 2.Declaration that the Claimant was unlawfully terminated
  3. 3.Costs and interest at court rates from date of judgment till full payment
  4. 4.Certificate of service under section 51 of the Employment Act to be issued within 30 days
  5. 5.Total award of Kshs 574,400/-

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment ActSection 29(8)
  • Employment ActSection 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (10)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Western Excavating (ECC) Ltd -v- Sharp
    [1978] ICR 222
  • Pedersen -v- Camden London Borough Council
    [1981] ICR 674
  • Office -v- Roberts
    (1980) IRLR 347
  • Jones -v- F Sirl & son (Furnishers) Ltd
    [1997] IRLR 493
  • Walker -v- Josiah Wedgwood & Sons Ltd
    [1978] IRLR 105
  • Wooder -v- Wimpey
    [1980] 1 WLR 277
  • Malik and Mahmud -v- Bank of Credit and Commerce International
    [1998] AC 20
  • Richard Kioko Kkuli vs Saj Raj Limited
    (2020) eKLR
  • Benjamin Mwendawa Nduati & 4 Others vs East Africa Portland Cement
    (2016) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction; Article 41 of the Constitution invoked

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, "Araka v Schenker (Kenya) Limited (Cause 232 of 2019) [2023] KEELRC 2036 (KLR)", Case Analysis (2023). Cause No 232 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2036/eng@2023-08-18

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