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ELRCDismissed· [2024] KEELRC 1508 (KLR)

Abdulkarim v Horizon Contact Centres Limited (Cause E515 of 2021) [2024] KEELRC 1508 (KLR)

Employment and Labour Relations Court
14 June 2024
JRJames Rika
3,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee who stopped working over a Covid-19 pay cut she helped design left voluntarily, losing her unfair termination claim entirely.

What this practically means

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Executive summary

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The Claimant, employed in 2012 and promoted to Finance Manager on a salary of Kshs 423,785, sued the Respondent alleging unlawful salary deductions from June 2020 (reduced to about Kshs 317,839), non-implementation of an increment, unpaid leave, and oral termination in January 2021 without notice or hearing, and sought declarations under Articles 41 and 47, salary arrears, leave pay, 12 months' compensation, a certificate of service, costs and interest. The Respondent maintained the Claimant abandoned work after objecting to a consensual Covid-19 pay cut that she herself had designed, and counterclaimed notice pay of Kshs 317,839 and general damages for the cost of outsourcing her payroll duties. The Court framed four issues: the mode of exit, fairness of any termination, the Counterclaim, and remedies. It found the Claimant voluntarily absented herself on an implausible claim of lack of transport despite living within walking distance of the workplace, told the CEO she would not continue unless her full salary was restored, and instigated cessation which the Respondent accepted. No letter or oral termination by the Respondent was proved, so claims of unfair and unlawful termination and unfair labour practice failed. The salary cut was found to have been made in consultation with employees, including the Claimant. The Counterclaim failed because the Respondent had already paid notice, and its general damages claim lacked particulars. Both the claim and the counterclaim were declined, with no order on costs.

Key legal issues

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01

Whether the contract was terminated by the Respondent or the Claimant left voluntarily

Holding

The Claimant left employment voluntarily; termination was instigated by the Claimant and accepted by the Respondent.

Reasoning

The Court found no letter or evidence of oral termination by the CEO. The Claimant informed the CEO she would not continue working unless her full salary was restored, having absented herself from work without lawful cause on the implausible ground of lack of transport, despite living within walking distance of the workplace and having been paid her November 2020 salary.

p. 5
02

Whether there was unfair, unlawful termination or unfair labour practice

Holding

No; the Respondent cannot be accountable where the Claimant herself opted to keep away from work and instigated cessation of employment.

Reasoning

The Claimant did not plead constructive dismissal; she maintained she was orally terminated, which the Court rejected. An employee who absents herself without leave and justifies it on flimsy grounds cannot claim violation of Article 41 rights. No evidence of unfair labour practice was adduced.

p. 5
03

Whether the Covid-19 salary deduction was lawful

Holding

The salary reduction was made in consultation with employees, including the Claimant who designed the model, and was not unilateral.

Reasoning

The Respondent consulted employees, offered a pay cut or unpaid leave as alternatives to termination, and negotiated moratoria with banks and landlords. The Claimant, as Finance Manager, designed the salary cut structure and implemented it. The Respondent's financial distress from Covid-19 was accepted, its business eventually ceasing operations.

p. 6
04

Whether the Counterclaim for notice pay and general damages was merited

Holding

The Counterclaim was rejected in its entirety.

Reasoning

The Respondent had paid the Claimant notice as shown in the last pay slip, so it could not counterclaim notice pay. The claim for general damages for outsourcing payroll was unsupported - no particulars, no name, and no terms of engagement of the replacement were disclosed.

p. 6

Legal principles established

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  • An employer's unilateral reduction of salary during Covid-19 is not unlawful where it was made in consultation with employees and the employee consented or acquiesced.
  • Where an employee initiates cessation of employment and the employer accepts, termination is deemed consensual and neither party can claim against the other.
  • An employer cannot pay notice to an employee and simultaneously counterclaim notice pay from the same employee.

Court orders

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  1. 1.The Claim is declined
  2. 2.The Counterclaim is declined
  3. 3.No order on the costs
Jurisdiction invoked
Employment and labour relations jurisdiction (Articles 41 and 47 of the Constitution invoked in the pleadings)

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, "Abdulkarim v Horizon Contact Centres Limited (Cause E515 of 2021) [2024] KEELRC 1508 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1508/eng@2024-06-14

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