[2016] KEELRC 1264 (KLR)
The court found that the respondent's indefinite suspension of the claimant without pay, despite the claimant not being found guilty of the alleged misconduct, constituted a fundamental breach of the employment contract. The respondent failed to communicate further or pay the claimant as promised, effectively...
Source-derived case information.
- Citation
- [2016] KEELRC 1264 (KLR)
- Parties
- Claimant: Geraphas Nyakundi Nyangau; Respondent: Career Directions Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 478 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant; termination declared unfair and unjustified; claimant awarded compensation and terminal dues.
- Legal Topics
- Constructive Dismissal, Unfair Termination, Disciplinary Procedure, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geraphas Nyakundi Nyangau
Claimant
Career Directions Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the indefinite suspension without pay amounted to constructive termination of employment.
- 2 Whether the claimant is entitled to terminal dues and compensation for unfair termination.
Ratio Decidendi
The court found that the respondent's indefinite suspension of the claimant without pay, despite the claimant not being found guilty of the alleged misconduct, constituted a fundamental breach of the employment contract. The respondent failed to communicate further or pay the claimant as promised, effectively preventing him from fulfilling his contractual obligations. This conduct amounted to constructive termination. The court held that the termination was unfair and unjustified as no valid or fair reason was established by the respondent, and due process was not followed. The claimant was therefore entitled to compensation and terminal dues under the Employment Act.
Court Disposition
Judgment for the claimant; termination declared unfair and unjustified; claimant awarded compensation and terminal dues.
Orders
- The termination of the claimant's employment is declared unfair, unlawful, and unjustified.
- The claimant is awarded KES 19,716 as one month salary in lieu of notice.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 478 OF 2015
GERAPHAS NYAKUNDI NYANGAU……………………………..………..CLAIMANT
VS
CAREER DIRECTIONS LIMITED…………………………………………RESPONDENT
JUDGMENT
Introduction
The claimant was employed by the respondent as a Yard Clerk from 14. 4.2014 at a monthly salary of kshs.19,716. 00. That he worked well without any disciplinary issue until 2. 1.2015 when he was suspended for the allegation that he corruptly solicited for funds from a customer. That on the same date he was served with a show cause letter to which he responded denying the offence. That on 27. 1.2015 he was invited for a disciplinary hearing after which he was directed to remain in the suspension although he was not found guilty of the offence of corruption. That since then he was never called back to work and no salary was paid to him and on 21. 5.2015, he served a demand letter through his lawyer but no response was received from the respondent. Consequently the claimant has formed the opinion that he has been constructively dismissed from work unfairly and brings this suit claiming terminal dues plus compensation for unfair termination.
Despite service, the respondent filed no defence and the suit was heard exparte on 12. 11. 2015 when the claimant testified as cw1. Thereafter the parties were directed to file written submissions but they all defaulted.
Analysis and Determination
There is no doubt that the claimant was employed and suspended by the respondent as pleaded in the suit. The issue for determination are whether the indefinite suspension without pay amounted to constructive termination and whether the reliefs sought ought to issue.
Constructive termination
The pleadings filed and evidence adduced by the claimant have neither been contested nor rebutted by the defence. It is also clear from the suspension letter and the show cause letters dated 2. 1.2015 that the claimant was accused by the respondent of corruption namely, soliciting money from a customer as an inducement to clear his goods. There is no dispute that he denied the offence both in writing and orally during the disciplinary hearing held on 27. 1.2015. It is also not in dispute that the claimant was not found guilty and punished for the offence after the hearing but he was kept under the suspension. That no communication was send to him and no half salary was paid to him during the indefinite suspension as promised under the suspension letter.
The court finds from the evidence presented before it that the indefinite suspension without pay, even after a disciplinary hearing, amounted to constructive termination of the claimant’s employment. It is trite that constructive termination of employment occurs in circumstances where the employer makes a fundamental breach of the contract or if his conduct prevents the employee from discharging his obligations under the contract. In such a case the employee is entitled to treat the said breach or conduct of the employer as sufficient ground for him to repudiate the contract and claim remedy. In this case the respondent charged the claimant with corruption but failed to prove and use it to punish the claimant. She however kept him under suspension without pay forcing the claimant to file this suit. On a balance of probability the court is satisfied that the services of the claimant were constructively terminated by the respondent. The termination was unfair and unjustified because no valid and fair reason was proved by the respondent against the claimant.
Relief
In view of the foregoing finding, the court makes declaration that the termination of the claimant’s employment was unfair, unlawful and unjustified. For the same reason, the claimant is awarded terminal damages under section 49 (1) of the Employment Act read with sub section (4) thereof. He is awarded kshs. 19716. 00 being one month salary in lieu of notice. He is also awarded kshs.19,716. 00 being salary for December 2014. He will also get kshs.9,200. 80 in respect of 14 days leave outstanding. He is also awarded kshs.118,296. 00 being salary for the suspension period from January and July 2015 when the suit was filed. He is further awarded 3 months salary as compensation for the unfair and unjustified termination being kshs.59,148. 00. The reason for the last award is because the claimant was not to blame for the termination through misconduct. He was also capable of getting an alternative job within 3 months after dismissal.
Disposition
For the reason stated above, judgment is entered for the claimant declaring his termination unfair and unjustified and awarding him kshs.226,076. 80. He will also get costs and interest.
Signed, dated and delivered this 6th day of May 2016.
ONESMUS MAKAU
JUDGE