[2014] KEELRC 996 (KLR)
The court held that the Claimant failed to discharge the burden of proof required to establish constructive dismissal or unfair termination. The mere fact that the Respondent made a complaint to the police, resulting in criminal charges, did not in itself amount to constructive dismissal. There was no evidence that...
Source-derived case information.
- Citation
- [2014] KEELRC 996 (KLR)
- Parties
- Claimant: Michael Nthenge; Respondent: Kenya Aurotech Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 711 of 2012
- Procedural Posture
- Employment Cause / Ex Parte Final Award
- Outcome
- Claim dismissed.
- Legal Topics
- Constructive Dismissal, Unfair Termination, Burden of Proof, Employee Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Nthenge
Claimant
Kenya Aurotech Limited
Respondent
Procedural Posture
Employment Cause / Ex Parte Final Award
Legal Issues
- 1 Whether the Claimant was constructively dismissed by the Respondent.
- 2 Whether the Claimant is entitled to terminal dues and compensation for unfair termination.
Ratio Decidendi
The court held that the Claimant failed to discharge the burden of proof required to establish constructive dismissal or unfair termination. The mere fact that the Respondent made a complaint to the police, resulting in criminal charges, did not in itself amount to constructive dismissal. There was no evidence that the Claimant attempted to return to work or was prevented from doing so by the Respondent. The Claimant's reliance solely on pleadings, without sworn testimony or further evidence, was insufficient to prove his case. Consequently, the claim for wrongful and unfair termination failed in its entirety.
Court Disposition
Claim dismissed.
Orders
- The claim is dismissed in its entirety with no order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO 711 OF 2012
MICHAEL NTHENGE..............................................................CLAIMANT
VS
KENYA AUROTECH LIMITED.............................................RESPONDENT
AWARD
Introduction
1. The Claimant's claim brought by Memorandum of Claim dated 24th April and filed in Court on 27th April 2012 is for unlawful dismissal and failure to pay terminal dues. The Respondent did not enter appearance nor did it file a defence. The Claimant's case therefore proceeded ex parte. The Claimant elected not to give sworn testimony.
The Claimant's Case
2. The Claimant was employed by the Respondent on 1st February 2005. In December 2007, upon the Respondent's complaint, the Claimant was arrested and charged with the offence of stealing by servant contrary to Section 281 of the Penal Code. The Claimant was eventually acquitted on 30th January 2012. It is the Claimant's case that the Respondent's complaint and the subsequent charges preferred against the Claimant amounted to constructive dismissal.
3. The Claimant therefore claims the following:
A declaration that he was constructively dismissed
Unpaid salaries for November 2007 to March 2012. ...............Kshs. 1,166,000
Unpaid leave.....................................................................................Kshs. 17,400
One month's salary in lieu of notice..............................................Kshs. 22,000
12 months' salary in compensation for unfair termination......Kshs. 264,000
Certificate of service
Costs
Findings and Determination
4. The main issue for determination in this case is whether the Claimant has made out a case for unfair termination. Section 47(5) of the Employment Act, 2007 provides that :
(5) For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.
5. In my view, the burden of proof placed on the Claimant does not shift or diminish by the mere fact that the claim is not defended. When Counsel for the Claimant appeared before me on 5th March 2014, he told the Court that the Claimant wished to rely on his pleadings filed in Court. In his Memorandum of Claim, the Claimant states that the complaint made by the Respondent which led to charges being preferred against him amounted to constructive dismissal.
6. In the case ofEmmanuel Mutisya Solomon Vs Agility Logistics (Industrial Court Cause No 1448 of 2011)Mbaru J defined constructive dismissal as:
“a situation in the workplace which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee to such an extent that the employee has no other option available but to resign.”
7. A complaint made to the police by an employer against an employee does not in my opinion, constitute circumstances leading to constructive dismissal. Apart from a general statement in the Claimant's submissions filed on 19th March 2014, there was no evidence that the Claimant sought to go back to work and was locked out by the Respondent.
8. I therefore find that the Claimant has not proved his claim for wrongful and unfair termination of employment. The claim therefore fails in its entirety and is dismissed with no order for costs.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21ST DAY OF MAY 2014
LINNET NDOLO
JUDGE
In the Presence of:
.................................................................................................Claimant
………. ................................................................................Respondent