Exotic Penina Fields Group Limited (F.T.A Carnation Plants Limited) v Mose (Appeal 27 of 2022) [2024] KEELRC 1299 (KLR)
The bottom line
#Kenya's Employment Court ruled an employee who refused to return after a COVID unpaid-leave recall was not unfairly terminated, wiping out the award.
What this practically means
#Executive summary
#Key legal issues
#Unfair termination
No unfair termination was established; the appellant honoured the temporary separation agreement and recalled the respondent, who elected not to resume duty
The respondent signed a separation agreement electing unpaid leave from 02.04.2020, acknowledging he would be recalled. The appellant sent an SMS recalling him to work. The respondent filed suit on 24.02.2021 and did not explain failing to resume duty. The trial court erred in inferring bad faith where the COVID crisis had not ended and no notice to sue had been served.
Notice pay
Not due since no termination was established
Having found that the employment was not terminated but that the respondent chose not to return following recall, the foundation for an award of one month's salary in lieu of notice fell away.
Salary for March and April 2020
Awards set aside as contrary to the parties' agreement
The respondent signed to go on unpaid leave from 02.04.2020, so the April salary claim contravened the agreement; the agreement made no reference to unpaid March 2020 salary. The trial court awards were therefore contrary to the evidence.
Legal principles established
#- Where an employee voluntarily elects unpaid leave under a COVID-19 separation agreement and is recalled to work but fails to resume duty, no unfair termination is established
- Where there is no termination, notice pay is not due
- Salary claims contrary to an agreed separation arrangement during the COVID-19 pandemic cannot stand
Court orders
#- 1.The trial Court's award of Kshs.28,490.30, costs and interest is set aside and replaced with dismissal of the suit with no costs
- 2.Each party to bear own costs of the appeal
- 3.The Deputy Registrar to return file to Machakos sub-registry forthwith
- On appeal from
- Lower Court (Magistrates' Court, Machakos)
- Not stated (statement of claim dated 24.02.2021)
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeal from the lower court (memorandum of appeal dated 01.12.2022); specific provision not stated in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Exotic Penina Fields Group Limited (F.T.A Carnation Plants Limited) v Mose (Appeal 27 of 2022) [2024] KEELRC 1299 (KLR)", Case Analysis (2024). Not stated in judgment (memorandum of appeal dated 01.12.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1299/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.