[2019] KEHC 1047 (KLR)
The court found no evidence that the claimant's redeployment to a new work station constituted a hostile work environment or constructive dismissal. The employer's discretion to transfer employees was upheld, and the claimant failed to substantiate her fears of insecurity or entitlement to transport allowance....
Source-derived case information.
- Citation
- [2019] KEHC 1047 (KLR)
- Parties
- Claimant: Rachel Muhonja Agani; Respondent: Creative Cleaning Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Cause 1914 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; constructive dismissal claim dismissed; underpayment awarded.
- Judges
- MSA Makhandia
- Legal Topics
- Constructive Dismissal, Underpayment of Wages, Minimum Wage Compliance, Service Pay, Employee Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rachel Muhonja Agani
Claimant
Creative Cleaning Services Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was constructively dismissed by the respondent.
- 2 Whether the claimant was underpaid in violation of minimum wage regulations.
- 3 Whether the claimant is entitled to service pay and other benefits.
Ratio Decidendi
The court found no evidence that the claimant's redeployment to a new work station constituted a hostile work environment or constructive dismissal. The employer's discretion to transfer employees was upheld, and the claimant failed to substantiate her fears of insecurity or entitlement to transport allowance. However, the respondent did not contest the claimant's detailed evidence of underpayment, and the court accepted her calculations, awarding her the sum claimed for underpayment of wages. Claims for Saccho contributions, transport allowance, and service pay were dismissed for lack of evidence or legal foundation.
Court Disposition
Claim partly allowed; constructive dismissal claim dismissed; underpayment awarded.
Orders
- Claimant awarded Kshs 169,567 for underpayment of wages.
- Claimant to have costs and interest on the judgment sum from 29 November 2013.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1914 OF 2013
RACHEL MUHONJA AGANI............................................................CLAIMANT
VERSUS
CREATIVE CLEANING SERVICES LTD....................................RESPONDENT
JUDGMENT
1. After several false starts, this Cause was heard on 7 February 2019 when Rachel Muhonja Agani (Claimant) commenced her testimony. She concluded her testimony on 30 October 2019.
2. Creative Cleaning Services Ltd (Respondent) opted not to lead any evidence.
3. The Claimant filed her submissions on 14 November 2019 while the Respondent’s submissions were not on file by 29 November 2019, the set timeline.
4. The Court has considered the pleadings, evidence and submissions on record.
Constructive dismissal
5. The Claimant was employed by the Respondent on 1 July 2001 as a general worker. On 12 March 2011, the Claimant resigned after she was reassigned to a new work station.
6. The Claimant asserted that she was forced to resign because she was not assured of her security and safety at the new work station which was far from her residence and also because the Respondent refused to offer her transport.
7. A party contending constructive dismissal is expected to demonstrate that the employer made the work environment hostile leaving no other option but to leave.
8. It was not disputed that the Respondent redeployed the Claimant to a new work station. An employer reserves the discretion to transfer or deploy an employee as the business dictates.
9. In this case, the Court can find no reason to conclude that the deployment of the Claimant to a new work station created a hostile work environment entitling her to leave and assert constructive dismissal.
10. There must have been other people working in the vicinity of the new workplace. The Claimant did not provide any evidence to show or corroborate her fears of insecurity in the new assignment. The Respondent was also not responsible for the choice of residence by the Claimant.
11. This was not a case of constructive dismissal and therefore compensation and pay in lieu of notice are not available as remedies.
Underpayment of wages
12. The Claimant’s substantive cause of action was on underpayment of wages from 2001 to 2010.
13. The Court requested and gave the parties time in the course of hearing to attempt to settle the question of underpayment of wages.
14. The parties, it appears did not seriously attempt to negotiate a settlement.
15. The Claimant set out in great detail at paragraph 8 of the Statement of Claim the salaries she was earning throughout the employment period, the applicable Regulation of Wages Orders setting/prescribing the minimum salaries and the amount of underpayments.
16. The Respondent made no effort at all to interrogate the details of underpayments, and the Court finds that the Respondent underpaid the Claimant by the sum of Kshs 169,567/-.
Contributions to workers Saccho
17. The Claimant did not provide any evidence support the claim that the Respondent did not remit her contributions to her Saccho. Even the amount was not disclosed.
Transport allowance
18. The Claimant did not prove that she was entitled to transport allowance or the contractual or legal foundation to the head of the claim and it is declined.
Service pay
19. The Claimant sought the equivalent of 1-month salary for each year worked as service pay totalling Kshs 74,173/- but failed to lead evidence as to the foundation for the formula used.
20. This head of claim/relief was not proved.
Conclusion and Orders
21. The Court finds and declares that the Claimant was not constructively dismissed.
22. However, the Court finds that the Claimant was paid below the prescribed minimum wages and awards her
(a) Underpayment Kshs 169,567/-
23. Claimant to have costs and interests on judgment sum from 29 November 2013.
Delivered, dated and signed in Nairobi on this 6th day of December 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Muturi instructed by Nelson Harun & Co. Advocates
For Respondent Ms. Wangari/Mr. Musyoka instructed by Migos-Ogamba & Co. Advocates
Court Assistant Lindsey