Tresor Limited v Rotich (Employment and Labour Relations Appeal E054 of 2022) [2024] KEELRC 2729 (KLR)
The bottom line
#Kenya's Employment Court confirmed that sending an employee on indefinite unpaid leave counts as constructive dismissal, so employers can't sidestep termination rules this way.
What this practically means
#Executive summary
#Key legal issues
#Whether placing an employee on indefinite non-working leave without pay, pending an audit, amounted to constructive dismissal
Yes. The letter of 16th March 2021 sent the Respondent on indefinite unpaid leave without specifying duration or pay, leaving him in suspense; this entitled him to treat the employment as constructively terminated, amounting to unfair and unlawful termination
The court adopted the contractual and unreasonable tests from Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga. The employer's letter directed the Respondent to hand over and proceed on non-working leave 'until further notice'. The employer admitted it had not terminated the services yet stopped paying salary as agreed and gave no resumption date. The court held these conditions were intolerable, justifying the employee in deeming himself constructively dismissed, which the trial court correctly found to be unfair and unlawful termination.
Whether the trial court's award of compensatory damages (3 months' salary plus one month in lieu of notice, totalling Kshs. 80,000) should stand
Yes. Having affirmed the finding of constructive dismissal amounting to unfair termination, the court saw no justification to disturb the award
The appellant argued the Respondent's employment was never terminated and the award should be set aside. The court, however, affirmed the finding that the constructive dismissal constituted unfair and unlawful termination. On a first appeal, the court reconsidered the evidence and concluded the trial court was right on both liability and compensation, holding there was no justification to interfere with the trial court's award of Kshs. 80,000.
Legal principles established
#- Constructive dismissal is established where working conditions imposed by the employer (such as indefinite unpaid leave with no duties) are intolerable and entitle the employee to deem the employment terminated; such constructive dismissal amounts to unfair and unlawful termination
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment of the trial court dated 25th November 2022 awarding the Respondent compensatory damages of 3 months' salary and one month's salary in lieu of notice (total Kshs. 80,000) stands
- On appeal from
- Senior Principal Magistrate's Court (Eldoret CMELRC No. E054 of 2022)
- E054 of 2022
- Jurisdiction invoked
- First appeal from the magistrates' court (ELRC appellate jurisdiction); no specific provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tresor Limited v Rotich (Employment and Labour Relations Appeal E054 of 2022) [2024] KEELRC 2729 (KLR)", Case Analysis (2024). ELRC Appeal (Eldoret CMELRC No. E054 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2729/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.