[2012] KEELRC 223 (KLR)
The court found that the claimant and respondent were in an employment relationship, and the respondent failed to pay the claimant's salary for April, May, and June 2011. The claimant's resignation was prompted by the respondent's failure to pay, amounting to constructive dismissal. The court disallowed claims for...
Source-derived case information.
- Citation
- [2012] KEELRC 223 (KLR)
- Parties
- Claimant: Rehana Mohammed; Respondent: MM Mobile Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1444 of 2011
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Claim partly allowed; claimant awarded salary arrears and compensation for constructive dismissal, subject to statutory deductions.
- Judges
- AM Cockar
- Legal Topics
- Salary Arrears, Unlawful Termination, Constructive Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rehana Mohammed
Claimant
MM Mobile Limited
Respondent
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the respondent unlawfully withheld the claimant's salary arrears and statutory deductions.
- 2 Whether the claimant was constructively dismissed due to non-payment of salary.
- 3 Whether the claimant is entitled to salary in lieu of notice and other claimed sums.
Ratio Decidendi
The court found that the claimant and respondent were in an employment relationship, and the respondent failed to pay the claimant's salary for April, May, and June 2011. The claimant's resignation was prompted by the respondent's failure to pay, amounting to constructive dismissal. The court disallowed claims for July and August salaries and for reimbursement of expenses due to lack of evidence. The court awarded the claimant one month's salary in lieu of notice, salary arrears for April to June 2011, and arrears for January 2011, subject to statutory deductions. The respondent's failure to participate in the proceedings or file a response further supported the claimant's case.
Court Disposition
Claim partly allowed; claimant awarded salary arrears and compensation for constructive dismissal, subject to statutory deductions.
Orders
- The respondent shall pay the claimant one month's salary in lieu of notice: Kshs. 277,989.
- The respondent shall pay the claimant salary arrears for April 2011 through June 2011: Kshs. 833,967.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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REHANA MOHAMMED................................................................................CLAIMANT
VERSUS
MM MOBILE LIMITED...........................................................................RESPONDENT
JUDGEMENT
By a statement of claim dated 16th August, 2011 the claimant seeks declaration that the respondent unlawfully withheld and or failed to pay her accrued salary arrears in the sum of Kshs. 1,046,666/-, statutory deductions in the sum of Kshs. 623,912/- and the sum of Kshs. 7,000/- on account of expenses she incurred on behalf of the respondent in purchasing compact discs.
When the case came up for hearing before Honourable Justice Kosgey, on 26th June 2012, there was no appearance for the respondent though there was proof of service on record. The Honourable Judge then proceeded to hear the case. It is also note worthy that the respondent never filed any response to the claim.
In her short testimony to the Court, the Claimant stated that she was employed by the respondent on 17th January, 2011 vide a written contract of the same date (appendix 1). She stated that her salary was Kshs. 200,000/-. The payment was through bank transfer to her account. Her bank statement annexed as appendix 3 showed that she received payment twice for the month of February and March. It was her evidence that she was never paid for April and subsequent months. In June, she stated that she quit the job when she realised no payment was forthcoming. She did so by tendering her resignation through an email sent on 4th July, 2011 (Appendix 7).
It is clear that the claimant and the respondent were in an employment relationship. By law it is a contractual obligation on the part of the employer that while the employee is performing the duties assigned by the employer, to pay wages to the employee.
Although the claimant is claiming salary arrears in the sum of 1,046,666/- no evidence was tabled before the trial court in support of this. From her evidence she stated that she did not receive salary for April, May and June when she decided to quit her job in July. In her statement of claim, the responded claims the sum of Kshs. 46,666/- which appears to be the balance of salary for January. If the claimant resigned her job at the beginning of July, 2011, she cannot claim salary for that month and August. This part of the claim is therefore disallowed. The claimant further did not produce any document in support of her claim that she spent Kshs. 7000/- to purchase compact discs on behalf of the respondent. This part of the claim also fails.
Section 35(1)(c) of the Employment Act as read together with section 36, obliges employer’s to give notice of termination of employment or payment in lieu thereof. Failure by an employer to pay an employee salary is a fundamental breach of contract and can be construed as constructive dismissal of such employee.
The resignation of the claimant was conditioned by the failure on the respondent’s part to pay her salary. A reading of the claimant’s letter of resignation- Appendix 2 clearly shows that her resignation was conditioned and not voluntary. In the circumstances the court treats it as unlawful termination and hereby awards her one month’s salary in lieu of notice as stipulated in her contract and as provided for under section 36 of the Employment Act, 2007.
In conclusion the court awards the claimant as follows:
1. One month’s salary in lieu of notice .......................................... 277,989
2. Salary arrears for April, 2011 through to June, 2011. ............................833,967
3. Arrears of salary for January, 2011. .........................................................46,666
1,158,622
This award is subject to statutory deductions.
The claimant will have costs of the suit.
Delivered this 25th day of October 2012
Abuodha J
Judge
Delivered in open Court in the presence of …...................................... for
the Claimant and …................................................... for th