[2021] KEELRC 984 (KLR)
The court found that the claimant was subjected to a hostile and abusive work environment by the respondent's director, which rendered continued employment intolerable and justified his resignation. This amounted to constructive dismissal in violation of the Employment Act. The claimant was entitled to compensation...
Source-derived case information.
- Citation
- [2021] KEELRC 984 (KLR)
- Parties
- Claimant: Joan Maliga Dalla; Respondent: Rubycut Gardens Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1902 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- MN Nduma
- Legal Topics
- Constructive Dismissal, Unfair Termination, Terminal Benefits, Workplace Harassment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joan Maliga Dalla
Claimant
Rubycut Gardens Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was constructively dismissed from employment in violation of the Employment Act.
- 2 Whether the claimant is entitled to compensation for unfair dismissal and terminal benefits.
- 3 Whether the claimant proved entitlement to overtime, public holidays worked, and house allowance.
Ratio Decidendi
The court found that the claimant was subjected to a hostile and abusive work environment by the respondent's director, which rendered continued employment intolerable and justified his resignation. This amounted to constructive dismissal in violation of the Employment Act. The claimant was entitled to compensation equivalent to six months' salary for unfair dismissal and payment in lieu of three years' untaken leave. The claims for overtime, public holidays, and house allowance were dismissed for lack of sufficient evidence or being time-barred. The court relied on statutory provisions and relevant case law to determine the claimant's entitlement to remedies.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant Kshs. 120,000 as compensation for constructive dismissal.
- The respondent shall pay the claimant Kshs. 60,000 in lieu of three years' annual leave not taken.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1902 OF 2017
JOAN MALIGA DALLA............................................................CLAIMANT
VERSUS
RUBYCUT GARDENS LIMITED......................................RESPONDENT
JUDGMENT
1. The claimant filed the suit on 25/9/2017 seeking compensation for wrongful dismissal and payment of terminal benefits to wit: -
(a) One-month salary in lieu of notice in the sum of Kshs. 20,000.
(b) Accrued leave pay for 5 years Kshs 100,000.
(c) Unpaid overtime Kshs 1,347,840.
(d) Unpaid public holidays worked – Kshs. 6,720.
(e) Unpaid gross allowance – Kshs. 180,000.
(f) Interest and costs.
2. Despite service of summons to enter appearance and the Statement of Claim, the respondent did not enter appearance nor file a statement of defence. The suit proceeded to formal proof as undefended suit.
3. The claimant filed affidavit evidence sworn to on 10/2/2021 to which is attached supporting documents. The claimant deposed that he was employed by the respondent as a cashier in January, 2011. That he was not given a letter of employment. That he worked continuously for a period of 5 years until he resigned from employment on 9th December, 2015 following endless insults and discriminatory remarks directed at him by the Respondent’s Director, One Ms. Risper. That she ridiculed him as overweight, and used insulting, and demeaning words every time she addressed him at the work place and this got worse whenever she was drunk.
4. That in the 1st week of December, 2015, the claimant experienced serious asthma attacks forcing him to request one-day sick off to seek medical attention on 7/12/2015.
5. On 8/12/2015 when he returned, Risper subjected him to insults including that he was suffering asthma attacks due to overeating at the work place.
6. The claimant considered the employment environment no longer tolerable and was forced to resign from employment. The claimant states that this was unlawful and unfair constructive dismissal and prays for compensation in addition to payment of terminal benefits.
7. The claimant wrote a letter of demand which was not heeded to hence the suit.
8. The Court finds that the claimant has proved that he was unlawfully and unfairly constructively dismissed from employment in violation of Sections 36, 43, and 45 of the Employment Act 2007 and the claimant is entitled to compensation in terms of section 49(1) ( c) and (4) of the Act.
9. In this respect, the claimant had faithfully and diligently served the respondent for a period of 5 years under a very abusive environment. The claimant lost his job due to the continuous violation of his dignity by a Director of the respondent. The claimant suffered loss and damage since he was not paid overtime; nor compensated for the job loss and was not paid in lieu of leave days not taken. The claimant lost prospects of career progression and became ill and lost self-worth as a result of the continuous abuse subjected to him by the respondent.
10. The Court has considered the case of Edwin Beti Kipchumba –vs-National Bank of Kenya Limited [2018] eKLR where the claimant was constructively dismissed.
11. The Court has also considered the Court of Appeal decision in Cocacola,East and Central Africa Limited –vs- Mene Kagai Ligaga [2015] eKLR.
12. The Court has come to the conclusion that the situation of the claimant was so toxic and intolerable for him to continue working as a result of the conduct of a Director of the employer. That the claimant was justified to resign as he did.
13. The Court awards the claimant the equivalent of six (6) month salary in compensation for the unlawful and unfair constructive dismissal in the sum of Kshs 120,000.
14. With regard to the terminal benefits, the claimant has established on abalance of probability that he was entitled to and was not paid, 60,000 in lieu of three years’ untaken leave. The rest of the claim is time barred.
15. The claimant did not adduce sufficient evidence to prove that he was not
paid overtime; public holidays worked and house allowance sought in the statement of claim. These prayers are dismissed. The claimant having resigned is not entitled to payment in lieu of notice pay.
16. In the final analysis judgment is entered in favour of the claimant against the Respondents as follows: -
(a)Kshs. 120,000 in compensation for constructive dismissal.
(b)Kshs 60,000 in lieu of three years Annual leave not taken.
Total Award: Kshs. 180,000.
(c)Interest at Court rates from date of judgment till payment in full.
(d)Costs of the suit.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 23RD DAY OF SEPTEMBER, 2021.
MATHEWS N. NDUMA
JUDGE
Appearances:-
Mr. Ondegi for claimant
Ekale – Court Assistant