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ELRCDismissedCause No 194 of 2019· [2023] KEELRC 2624 (KLR)

Omwancha v Chandaria Industries Limited (Cause 194 of 2019) [2023] KEELRC 2624 (KLR)

Employment and Labour Relations Court
19 October 2023
MNMathews N. Nduma
1,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled the employee resigned voluntarily, not constructively dismissed, so he lost his compensation, notice pay, and overtime claims.

What this practically means

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Executive summary

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The claimant, employed by the respondent from January 1997 as a casual labourer and later confirmed as a Salesman with a last salary of Kshs.123,976, sued on 28/3/2019 seeking maximum compensation for alleged constructive dismissal, one month's salary in lieu of notice, overtime of Kshs.1,115,784 for May 2015 to May 2018, costs and interest. He testified that following a theft allegation on 26th April 2018, he received a notice to show cause on 5/5/2018, responded on 7/5/2018, and was suspended on 8/5/2018 pending investigations, but was never recalled to work. The respondent denied the claim, contending the claimant resigned by letter dated 9/5/2018 and was paid all his benefits. R.W.1 Bhavin Shah, head of finance, produced the resignation letter and confirmed the disciplinary process was never concluded because the claimant resigned. The court framed two issues: whether the claimant was constructively dismissed or resigned, and entitlement to reliefs. Applying sections 107 and 108 of the Evidence Act, the court found the claimant bore the burden of proving constructive dismissal. It doubted his credibility, noting he made no written follow-up on the suspension or terminal dues until a demand letter eight months later, and found no reason to doubt the resignation letter was written and delivered by him. The court held the claimant severed the employment relationship voluntarily, dismissing the compensation and notice-pay claims, and dismissed the overtime claim for want of any documented claim during his 20 years' service. The entire suit was dismissed. Considering his 20 years of service and the mutual separation, the court ordered each party to bear their own costs.

Key legal issues

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01

Constructive dismissal versus resignation

Holding

The claimant was not constructively dismissed; he voluntarily resigned by a letter dated 9/5/2018

Reasoning

The respondent produced a resignation letter dated 9/5/2018, written a day after suspension. The claimant did not contest the handwriting, only casually denied signing or presenting it. The claimant gave no evidence of following up on the suspension or investigations in writing until a demand letter eight months later, undermining his assertion of dismissal.

p. 3
02

Entitlement to notice pay

Holding

A claimant who resigns without notice is not entitled to one month's salary in lieu of notice

Reasoning

Having found the claimant resigned voluntarily and without notice, the court held he could not claim notice pay. The claim for one month's salary in lieu of notice (Kshs.123,976) was dismissed.

p. 3
03

Entitlement to overtime

Holding

The overtime claim failed for want of proof

Reasoning

The claimant testified he worked from 7.30 a.m. to 5.30 p.m. without overtime pay, but produced no documented claim for overtime made to the respondent during his 20 years of service, so the claim of Kshs.1,115,784 was dismissed.

p. 3

Legal principles established

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  • The burden lies on a claimant to prove constructive dismissal on a balance of probability
  • Burden of proof rests on the party who would fail if no evidence were given

Court orders

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  1. 1.Suit dismissed in its entirety
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 108
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Section 107 and 108 of the Evidence Act applied on burden of proof); no specific constitutional provision stated

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, "Omwancha v Chandaria Industries Limited (Cause 194 of 2019) [2023] KEELRC 2624 (KLR)", Case Analysis (2023). Cause No 194 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2624/eng@2023-10-19

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