Athman v Kenya Red Cross Society (Cause 1973 of 2017) [2024] KEELRC 1114 (KLR)
The bottom line
#Kenya's Employment Court ruled that suspending an employee indefinitely without pay, then going silent, is unfair termination - and suspended workers can still sue years later.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim was statute barred under Section 90 of the Employment Act, 2007
Not statute barred; the cause of action did not arise on the date of suspension because the claimant remained an employee during an indefinite suspension and the disciplinary process was never concluded
The court held suspension does not terminate employment; a suspended employee continues to regard himself as an employee. The respondent tendered no evidence of when it terminated employment, and the claimant was still communicating with the respondent as late as 26th September 2016 without any outcome communicated. Even assuming a reasonable time of 6 months, the suit filed on 4th October 2017 was within time.
Whether the indefinite suspension amounted to constructive dismissal and unfair termination
Yes; the indefinite suspension without pay and without communication of the outcome of the disciplinary process amounted to unfair termination for want of substantive justification and procedural fairness
Applying the contractual approach in Western Excavating v Sharp and Coca Cola v Ligaga, the court found the circumstances entitled the claimant to consider himself constructively dismissed. The respondent paid no salary during suspension and never communicated the outcome of the investigations despite the claimant's cooperation and enquiries. The respondent tendered no evidence and failed to discharge its burden under Sections 41 and 45 of the Employment Act.
What reliefs the claimant is entitled to
Six months' unpaid salary during suspension, one month's salary in lieu of notice if unpaid, equivalent of 2 months' salary as compensation, and a certificate of service
The respondent neither denied non-payment of salary nor the suspension. Indefinite unpaid suspension was held an unfair labour practice under Article 41. Compensation under Section 49(1)(c) was moderated to 2 months given the short employment of about 6-7 months and the claimant's non-contribution to the termination. A certificate of service follows under Section 51.
Legal principles established
#- Placing an employee on an indefinite suspension without pay is an unfair labour practice under Article 41 of the Constitution; a suspension must be justified and of defined duration
- Where an employer suspends an employee indefinitely without a formal termination letter, the employer bears the burden of proving when time for limitation started running, as the employee remains entitled to regard himself as an employee
- An employer must prove a valid and fair reason and fair procedure for a termination to be lawful under Sections 35, 41, 43 and 45 of the Employment Act
Court orders
#- 1.Six (6) months salary unpaid during suspension Kshs.180,000/=
- 2.One month's salary in lieu of notice, if unpaid
- 3.Equivalent of 2 months' salary as compensation for unfair termination
- 4.Certificate of service to be issued within 30 days from the date of judgment
- 5.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim of unfair/constructive termination); limitation dealt with under Section 90 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Athman v Kenya Red Cross Society (Cause 1973 of 2017) [2024] KEELRC 1114 (KLR)", Case Analysis (2024). Cause No 1973 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1114/eng@2024-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.