Kinyanjui v Walokana Multi-purpose Co-operative Society Limited (Cause E441 of 2020) [2024] KEELRC 2396 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - the demotion from supervisor to pump attendant without consultation was a repudiatory breach amounting to constructive dismissal.
Applying the contractual test in Western Excavating v Sharp as domesticated in Coca Cola v Ligaga, the court found the unilateral alteration of the Claimant's position went to the root of the contract. The alleged poor performance was unproved, no Performance Improvement Plan or disciplinary hearing was conducted, and the Claimant was never consulted on the demotion contrary to section 10(5) of the Employment Act.
Whether the Claimant was discriminated on the basis of pregnancy
No - the discrimination claim failed for want of proof of communication of the pregnancy and of nexus between the demotion and the pregnancy.
Although Article 27(4) and section 5(3) of the Employment Act outlaw pregnancy discrimination, the Claimant admitted she had no evidence of having informed any supervisor of the pregnancy, the alleged supervisor denied being told, and the forged sick sheet undermined her case. Her own testimony confirmed she was not discriminated against for most of her employment.
Whether the Respondent proved desertion
No - the employer gave no evidence of steps taken to have the Claimant resume duty or face discipline.
The court noted authorities requiring an employer alleging abscondment to demonstrate reasonable efforts to contact the employee. The Respondent produced no evidence of such efforts nor of any disciplinary proceedings, so the desertion defence did not defeat the constructive dismissal finding.
Entitlement to reliefs (compensation, notice, house allowance, underpayment, certificate of service)
Four months' salary compensation, one month in lieu of notice, 15% house allowance for 3 years, underpayment limited to 3 years, and a certificate of service were awarded; other heads were declined.
Compensation under section 49(1)(c) took account of the warning letter, the 6-year-and-4-month service period and the Claimant's conduct. No evidence of compliance with section 36 or payment/consolidation of house allowance was adduced. Underpayment was computed from the Regulation of Wages (General) Orders but limited to the 3 years before termination. The certificate of service flows from section 51.
Legal principles established
#- An employee's position/designation is a fundamental term of the contract of service; unilateral alteration without consultation amounts to a repudiatory breach and may constitute constructive dismissal.
- Under section 10(5) of the Employment Act, terms of a contract of service cannot be altered without consultation with the employee and written notification of the change.
- An employer alleging desertion must demonstrate the steps taken to have the employee resume duty or face disciplinary proceedings.
- A claimant alleging pregnancy discrimination must establish a nexus between the adverse employment decision and the pregnancy.
Court orders
#- 1.Declaration that the Claimant was constructively dismissed.
- 2.Equivalent of 4 months' salary as compensation for unfair termination, Kshs.65,713.20.
- 3.One month's salary in lieu of notice, Kshs.16,428.30.
- 4.House allowance at 15% of basic salary for 3 years, Kshs.88,711.2.
- 5.Underpayment for April 2017 to March 2020, Kshs.143,693.2 (total award Kshs.314,545.9).
- 6.Certificate of service.
- 7.Interest at court rates from the date of judgment until payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Constitution (Articles 27, 28, 41 invoked by parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui v Walokana Multi-purpose Co-operative Society Limited (Cause E441 of 2020) [2024] KEELRC 2396 (KLR)", Case Analysis (2024). Cause No E441 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2396/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.