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ELRCPartially AllowedNot stated in judgment (Employment and Labour Relations Court Statement of Claim filed 22nd December 2017)· [2024] KEELRC 2435 (KLR)

Masha v Boma Hotels (Cause 2510 of 2017) [2024] KEELRC 2435 (KLR)

Employment and Labour Relations Court
4 October 2024
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent Hotel as Reservation Manager from 1st April 2012 at a gross monthly salary of Kshs 134,600, sued claiming 3 months' salary in lieu of notice, 12 months' salary for unfair termination, gratuity for 5 years, a certificate of service and costs. He alleged he was coerced to resign on 3rd April 2017 during a meeting over alleged hotel overbooking, with a promise of notice pay that was not honoured. The Respondent maintained he resigned voluntarily on 4th April 2017 while facing disciplinary proceedings, without giving notice, and that notice paid was by inadvertence. The Court framed three issues: whether the contract was terminated unfairly, unlawfully or at all; whether the Claimant resigned voluntarily; and whether the prayers were merited. The Court found no evidence of coercion: the resignation letter did not mention duress or overbooking, was grateful in tone, and the Claimant could not name the alleged coercing officer. By resigning, he foreclosed the disciplinary inquiry into the overbooking. His unfair termination claim was dismissed as farfetched. The Court held that the Respondent's offer of notice pay converted the resignation into consensual termination through notice. On the notice period, the Court found no valid variation of the contractual 3-month notice to 1 month, holding that unilateral memos on notice boards do not vary contracts and the burden of proving variation lay on the employer. The Court awarded the balance of 2 months' notice at Kshs 269,200, ordered issuance of a certificate of service, and granted costs to the Claimant. Gratuity was declined as unfounded in law or contract.

Key legal issues

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01

Whether the Claimant's resignation was coerced (constructive/forced resignation)

Holding

The resignation was voluntary; no evidence established that the Claimant was forced out of employment

Reasoning

The Claimant resigned by letter dated 4th April 2017 rather than face disciplinary action over hotel overbooking. The letter did not allude to duress or overbooking, was grateful in tone, and he could not name the officer who allegedly coerced him. The Respondent accepted the resignation. Without the disciplinary hearing, the Court could not determine blameworthiness, which the Claimant himself foreclosed by resigning abruptly.

p. 3
02

Whether the notice period in the contract was validly varied from 3 months to 1 month

Holding

The variation was not established; the contractual 3 months' notice applied

Reasoning

The contract under clause 3 provided for 3 months' notice; 1 month was the probationary notice. The Respondent relied on a memo dated 1st September 2016, which was not shown to have been received or signed by the Claimant. There was no letter of variation signed by the Claimant, though he had signed the contract itself. The burden of proving variation lay on the Respondent and was not discharged.

p. 4
03

Entitlement to notice pay

Holding

Having offered to pay notice, and absent proof of variation, the Respondent was bound to pay 3 months' salary in lieu of notice; the 1 month already paid left a 2-month balance recoverable

Reasoning

The Respondent voluntarily offered notice pay once it was agreed the Claimant would resign, converting the resignation into consensual termination through notice. Since the contractual notice period of 3 months stood unvaried, the probationary 1-month payment was inadequate. The Court awarded the balance of 2 months at Kshs 269,200. The Respondent did not counterclaim notice pay from the Claimant.

p. 4

Legal principles established

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  • Terms and conditions of service cannot be varied through unilateral memos placed on employers' notice boards; variation requires the employee's agreement, properly executed like the original contract
  • It is the employer's evidential burden to establish variation of the contract
  • An employer's offer to pay notice upon resignation converts termination through resignation into regular, consensual termination of the contract through notice

Court orders

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  1. 1.It is declared that termination was consensual
  2. 2.The Respondent shall pay to the Claimant the balance of notice of 2 months, at Kshs 269,200
  3. 3.Certificate of Service to issue
  4. 4.Costs to the Claimant
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court over the Statement of Claim (no specific constitutional/statutory provision stated in the judgment)

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, "Masha v Boma Hotels (Cause 2510 of 2017) [2024] KEELRC 2435 (KLR)", Case Analysis (2024). Not stated in judgment (Employment and Labour Relations Court Statement of Claim filed 22nd December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2435/eng@2024-10-04

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