Safetrac Limited v Omondi (Appeal E101 of 2021) [2024] KEELRC 768 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employers accusing staff of losing property must strictly prove both fault and value, and that unbearable working conditions amount to constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer proved the claim for the value of the 21 lost tracking devices
The claim failed: no evidence linked the loss to the Respondent's negligence, and the value of the devices was not specifically proved
The Respondent's role was supervisory; tagging and untagging were not his direct responsibility, and the loss was discovered by the Respondent himself, who attempted recovery. The witness gave inconsistent values (USD 300 vs USD 1700 per device) and admitted the lost devices could not be tied to the proforma invoice. A liquidated/special damages claim required strict proof, which was not met.
Whether the counterclaim was allowed solely because there was no reply to the amended defence and counterclaim
No; the mention of the missing reply was merely noted, and the reliefs granted were anchored on the finding of unfair termination
The court examined paragraphs 28 and 29 of the trial judgment and concluded the award flowed from the finding of constructive and unfair dismissal, not from the absence of a reply. Ground 2 of the appeal was rejected.
Whether the Respondent was constructively dismissed
Yes; applying the unreasonable test, the employer's conduct (unjustified accusations, threats of surcharge, forcing him to perform three roles) made continued employment intolerable
The Respondent's uncontroverted evidence showed accusations of faking illness, incompetence and poor performance, threats to recover the cost of missing devices, and being overburdened acting in multiple roles. This breached the employer's duty of trust and confidence. The trial magistrate's finding, though shallowly reasoned, was affirmed on re-evaluation.
Whether entitlement to salary in lieu of notice under Section 35 of the Employment Act applies on resignation
The trial court's award of notice pay was upheld; the appeal ground that resignation excluded Section 35 did not succeed
The court affirmed the trial court's reliefs as flowing from the finding of constructive dismissal, and found the remedies for constructive dismissal are the same as for other forms of dismissal.
Legal principles established
#- On a first appeal the court must reconsider and re-evaluate the evidence and come to its own independent conclusions while allowing for the fact that it neither saw nor heard the witnesses
- The test for constructive dismissal is that the employee was entitled to leave without notice because of the employer's conduct, applying either the unreasonable test or the contractual (repudiatory breach) test
- The tone of a resignation letter alone cannot determine a claim of constructive dismissal; the factual circumstances must be considered
- A proforma invoice alone cannot prove the value and delivery of goods where these are in contestation; documents proving delivery and payment are required
- Where an employer fails, without explanation, to call a crucial witness central to the events complained of, an adverse inference may be drawn that the evidence would have been averse to the employer's position
Court orders
#- 1.The appeal is dismissed
- 2.The Appellant to pay costs of the appeal
- On appeal from
- Chief Magistrate's Court at Nairobi (CMELC)
- CMEL Cause No. 538 of 2018
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Court Act over appeals from the Chief Magistrate's Court (ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safetrac Limited v Omondi (Appeal E101 of 2021) [2024] KEELRC 768 (KLR)", Case Analysis (2024). ELRC Appeal challenging CMEL Cause No. 538 of 2018 (Memorandum of Appeal dated 16th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/768/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.