The appeal arises from the judgment delivered on 15 June 2024 in Kilifi CMELRC No. E052 of 2021. The appellant seeks to set aside the judgment and allow his claim with costs.
The appellant’s case before the trial court was that he was employed by the respondent as a plumber on 1 January 2014 at a monthly wage of Ksh.17, 000. In March 2019 the wage increased to ksh.20, 000 per month. He holds a Grade III certificate in plumbing and during his employment, he was underpaid contrary to the Minimum Wage Orders.
From May 2015 to April 2017, the wage due was ksh.18, 595.20 but was paid Ksh.17, 000;
From May 2017 to April 2018 the due wage was Ksh.21, 942.35 but he was paid Ksh. 17,000;
From May 2018 to February 2019, the wage due was ksh.23, 039.45 but he was paid Ksh.17, 000;
From March 2019 to May 2020 the wage due was Ksh.23, 039.45 but was paid Ksh. 20, 000.
The appellant claimed that he worked for 20 days in June 2020 after which the respondent stopped allocating him duties. There was no communication on the status of his employment which amounted to constructive dismissal. He was not paid for days worked. He claimant the following terminal dues;
- Declaration that there was constructive dismissal;
- Notice pay Ksh.23,039.45;
- 12 months compensation Ksh.276,473.40;
- 20 days salary Ksh.15,359.60;
- Salary deduction Ksh.15,000;
- Underpayments Ksh.203,579.25;
- Costs of the suit.
The respondent in response denied employing the appellant as alleged. There was no employment contract between the parties hence no termination of employment as alleged. The appellant did not submit his professional certificate for consideration of employment. He was employed as a plumber but he had no certification. He accepted employment and the given terms and conditions and did not object to the wages paid. The respondent considered him as an upgraded artisan within the meaning of the Regulation of Wages Orders and the payment sheets produced. The appellant was allocated duties in Kilifi County as an upgraded artisan and the Wage Orders applicable for other areas were used to pay his wages. His wages should have applied as follows;
- From May 2015 to April 2017 the wage due is Ksh.11,279.50;
- From May 2017 to April 2018 the wage due is Ksh.13,309.80;
- From May 2018 to February 2019 the wage due is Ksh.13,975.55;
- From March 2019 to May 2020 the wage due is Ksh.19,975.55
There was no underpayment as alleged. The respondent paid above the minimum wage. The appellant willfully left his employment without notice and opted to work independently. He refused to report to work and cannot justify a claim for constructive dismissal. The appellant damaged the employment relationship and breached the terms of employment by soliciting work from the respondent's client, Mtwapa EPZ, without the respondent's consent and proceeded to take on plumbing work and utilizing funds paid to him by the respondent's client. The appellant did not resign from his employment, and there was no termination of employment by the respondent since he opted to work independently. In March 2020, the respondent instructed the appellant to report for work at Ocean Seven Site but declined. The director called the appellant on 19 May 2021 [2020?] but he was not on site. In June 2020, the respondent found the appellant working at Mtwapa EPZ, and the attending client confirmed that he was an independent contractor. The appellant also subcontracted other persons, Ismael, Kazungu, David and Anderson, to carry out plumbing works for Mtwapa EPZ. During his employment period, the appellant constantly absented himself from work without leave;
In a letter dated 26 February 2015, the appellant apologized;
In a letter dated 18 May 2016, the appellant apologized for being absent from work;
Records for March and April 2015 when the appellant was absent from work.
The appellant was of gross misconduct for remaining absent from duty for many days without approval. He willfully neglected his duties and failed to take lawful orders and directions. Such resulted in gross misconduct and then decided to abscond duty.
During his employment, the appellant had taken a loan from the respondent. This was to be offset from his wages. On 4 May 2020, the respondent demanded the same, but the appellant has not repaid in full. There were deductions in March, April and May 2020 for ksh.5, 000 and the respondent only recovered Ksh.15, 000. A Certificate of Service has since been issued. Notice pay is not due as claimed since the appellant absconded duty. There was no work in June 2020 to justify the claimant for 20 days' wages. The wage deductions were for a salary advance and loan; no underpayments were alleged.
The learned magistrate heard the parties and delivered judgment on 15 July 2024 and held that the claims by the appellant were without merit and hence dismissed the claimant with costs to the respondent.
Aggrieved, the appellant filed the appeal on grounds;
- That the learned magistrate erred in law and fact in holding that the appellant was not constructively dismissed from his employment, but rather absconded from duty.
- The learned magistrate erred in law and fact in considering irrelevant issues thus holding that the appellant had absconded from duty and consequently dismissing the claim.
- The learned magistrate erred in law and fat by totally disregarding and or not appreciating the appellant’s case and submissions thus dismissing the appellant’s case.
- The learned magistrate erred in law and fact in holding that the appellant was not entitled to the reliefs sought in the claim.
- The learned magistrate erred in law and fact by delivering judgment in total disregard to the provisions of the law.
- The learned magistrate erred in law and fact in dismissing the claim with costs.
On the appeal, both parties attended and agreed to address by way of written submissions.
The Appellant submitted that he started working for the respondent on 1st January 2014 as a plumber for a monthly salary of Kshs.17,000 and in March 2019 his salary rose to Kshs.20,000. In June 2020, the respondent stopped allocating him duties and there was no communication on the status of his employment thus the same amounted to constructive dismissal. The respondent further deducted Kshs.5,000 from his salary in March, April, and May to reimburse himself for the money he used to settle the decretal sum in Kilifi SPMC Civil Suit No.236 of 2016. the same as advance payment, however, there is no proof that the appellant had applied for an advance salary during those months.
In Milton M Isanya v Aga Khan Hospital Kisumu [2017] eKLR, the court held that, a constructive dismissal occurs when the employer does not express the threat or desire to terminate employment but frustrates the employee to the extent that the employee tenders to resign.
The appellant's alleged absenteeism from work and apology letter were for 2015. Despite this, the respondent continued allocating the appellant's duties until 2020 and maintained an employer-employee relationship. The respondent's submissions through an email dated 23 July 2020, stating that he had not reported to the site assigned since early June, confirms that the appellant worked in June, though not the whole month. In Karimi v Katheri Farmers' Co-operative Society Limited (Cause E022of 2023) |2024] KEELRC 2195 (KLR), the court held that constructive dismissal takes various forms, including a unilateral variation of the contract of employment; non-payment or delay in payment of salaries, indefinite suspension without pay, failure to assign duties, overworking, adverse discrimination, and mistreatment such as verbal abuses. When the employer subjects his employee to the above conditions, the employee may resign or leave without notice and sue for constructive dismissal because the resignation is not voluntary.
The appellant, in this case, was constructively dismissed from employment and did not abscond from duty as alleged. The appellant has never been served with any notice of termination, paid in lieu of the same, or subjected to any disciplinary proceeding for the alleged absconding.
The respondent submitted that the appellant was employed as a plumber and received remuneration over and above the minimum wage. He was an ungraded artisan working in other areas as provided for under the prevailing Regulation of Wages General Amendment order 2018 and was earning Kshs. 20,000. In Karume Enock v Diesel Inject Services Limited [2016] KEELRC 481(KLR), the court held that the employee did not produce his original Trade Test Certificate and did not prove underpayments. The prayer is dismissed.
On 19 May 2021, the respondent's director called the appellant, and he stated that he was on site. However, upon reaching the site, the director discovered that the appellant was not there. The appellant did not contest the evidence by the respondent's witness that he was found working at Mtwapa EPZ when he was meant to be working at the respondent's Ocean Seven site. The respondent further confirmed during cross-examination that he did not terminate the appellant's employment. Instead, he absconded from work and was working at Mtwapa EPZ. The appellant's habitual absenteeism and absconding duty is an act of gross misconduct as per Section 44(a), (c) and (e) of the Employment Act that entitled the respondent to dismiss the Appellant summarily. Despite this, the respondent exercised patience by allowing the appellant to continue working despite his prior misconduct.
In the case Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, the court held that;
What is the key element and test to determine if constructive dismissal has taken place? The factual circumstances giving rise to constructive dismissal are varied. The key component of the definition of constructive dismissal is that the employee must have been entitled or have the right to leave without notice because of the employer's conduct. Entitled to leave has two interpretations, which give rise to the test to be applied. The first interpretation is that the employee could go when the employer's behaviour towards him was so unreasonable that he could not be expected to stay - this is the unreasonable test. The second interpretation is that the employer's conduct is so grave that it constitutes a repudiatory breach of the employment contract - this is the contractual test.
The appellant initially stated that he worked for 20 days in June 2020 and later said that he was not assigned any work from June 2020, which is contradictory. In Kenya Union of Sugarcane Plantation and Allied Workers v Othira (Appeal E005 of 2023) [2024] KEELRC 843 (KLR) (18 April 2024) (Judgment), it was held that for a constructive dismissal to be construed, there must be resignation. Resignation is viewed as communication of the intolerability of the employer's conduct. In the absence of resignation, it is safe to infer that the employee has acquiesced to the employer's intolerable conduct.
The court in the case of Maingi v Bridge International Academy Limited (Civil Appeal 193 of 2019) [2023] KECA 1211 (KLR) (6 October 2023) (Judgment), held that the employee did not give any reasons for his resignation in the resignation letter. He just decided to leave employment as was his right to do. The appellant has failed to substantiate his claim for constructive dismissal. At no point has the appellant averred that the respondent's working conditions were so intolerable that they would result in him leaving the respondent's employment. Further, no reasons or evidence were provided to prove that the employer went to Mtwapa EPZ due to any act by the employer.
Determination
This is a first appeal. The court must review the record, re-analyze it, and make conclusions.
The core questions in this appeal are whether the respondent constructively dismissed the appellant, whether the trial court's findings that the appellant absconded duty were properly addressed, whether the claims made were justified, and whether the award of costs to the respondent was justified.
Indeed, the judgment of the trial court extensively analyzed the concept of constructive dismissal. This must arise from circumstances in which the employee is forced to terminate employment due to the employer's conduct. The employee is placed under intolerable working conditions that make it impossible to sustain his employment.
This is defined by the Court of Appeal in Maingi v Bridge International Academy Limited [2023] KECA 1211 (KLR) to be that;
The key element in the definition of constructive dismissal is that the employee must have been entitled to or have the right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which gives rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behaviour towards him was so unreasonable that he could not be expected to stay- this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constitutes a repudiatory breach of the contract of employment- this is the contractual test.
The court addressed the various elements that one has to meet as defined in the case of Coca Cola East & Central Africa Limited v Maria Kagai Lugaga (2015) eKLR to include;
The guiding principles in determining the issue of constructive dismissal are as follows:
- What are the fundamental or essential terms of the contract of employment?
- Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?
- The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.
- An objective test is to be applied in evaluating the employer’s conduct.
- There must be a causal link between the employer’s conduct and the reason for the employee terminating the contract i.e. causation must be proved.
- An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.
- The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach.
- The burden to prove repudiatory breach or constructive dismissal is on the employee.
- Facts giving rise to repudiatory breach or constructive dismissal are varied.
Do these elements apply in the appellant’s case?
His case is that from 20 June 2020, the respondent stopped allocating his work.
There was no communication.
During his evidence in chief on 19 September 2023, the appellant testified that in June 2020, it was during the Covid period. He once worked for Mtwapa EPZ and was paid Ksh.250, 000, but he continued working with the respondent.
The appellant also admitted that the respondent made deductions from his wages for days, not at work.
The appellant did not actualize his alleged non-communication with the respondent or his failure to be allocated work with a resignation. The court can deduce that he started working for third parties from his evidence.
The concept of constructive dismissal does not apply to the appellant. The trial court well addressed the matter.
The respondent also argued that the appellant was habitually absent from work. Indeed, he filed several letters of apology and continued to be absent on several other occasions. The sanction was a deduction from his wages.
The appellant admitted that he suffered wage deductions on several occasions.
It is trite that the employee does not terminate his employment through absconding duty, desertion, or abandonment. The employer retains the legal role of terminating employment when the employee remains absent on the shop floor without permission, approval, or justification. In the case of Nyali Academy Service Limited t/a The Mombasa Academy v Muli [2023] KEELRC 2041 (KLR) and Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] KEELRC 141 (KLR), the court has held that the employee who deserts employment does not dismiss himself. The decision to formally end the employment relationship should come from the innocent party, the employer.
The rationale is that absence from work without permission and approval by the employer is defined as gross misconduct under Section 44 of the Employment Act. The employer should hold the employee accountable if he remains absent from work without permission.
In this case, the option to make a wage deduction when the appellant remained absent from work seemed to be the modus operandi. He took it that this was the practice. He sourced work from the respondents' clients, including Mwapa EPZ, and was paid Ksh. 250,000. Hence, when the respondent called him to work at the Ocean Seven Site, he was busy with personal contracts.
The respondent did nothing.
The appellant did not attend as directed after the call on 19 May 2020.
The respondent did nothing.
Intimately, the respondent failed to apply the legal protections under the Employment Act to secure a position against the appellant. Nothing was done to address his gross misconduct. Leaving the appellant at large only exposed the respondent to the claims herein made.
This resulted in unfair termination of employment through inaction by the respondent.
The trial court did not address this aspect of the claim.
Despite no constructive dismissal as alleged, the court finds no due process applied in terminating the appellant's employment by the respondent as the employer. Where he absconded duty from June 2020, recourse was to issue notice to him and, where he could not be found, serve the Labour Officer under Section 18(5) (b) of the Employment Act. This would have protected the respondent.
These provisions were not applied.
The appellant is entitled to notice pay and compensation.
The court must apply the provisions of Section 45(5) of the Employment Act to address the compensation due. The work record of the employee.
In this case, the appellant had a litany of misconduct. He has not challenged the records filed and his apology letters for being absent from work without permission. His admission that he worked for third parties while in the respondent's service confirms these facts.
To award compensation would be to reward gross misconduct. An award of zero (0) compensation is hereby found justified.
Notice pay is based on the last wage of Ksh. 20, 000.
On the claims made for the 20 days worked in June 2020, without the respondent applying the due process to terminate employment, the law demands that the due wage be paid on the last day's employment terminated. The appellant was earning Ksh. 20,000, and for 20 days, he is entitled to Ksh.13, 334.
Regarding the claimed salary deductions from March, April, and May 2020, the appellant's response that he had secured a loan and wage advance from the employer was not challenged. He admitted in evidence that he had enjoyed such benefits.
Under Section 19 of the Employment Act, at the end of employment, the employer is allowed to deduct what the employee owes the employer. In Javan Were Mbango v H. Young & Co. (EA) Ltd [2012] eKLR, the court held that;
In making payments to any employee, an employer must ensure that all the statutory deductions due are removed from the gross pay. The employer is, therefore, entitled to make a deduction of any amount authorized by any written law for the time being in force, collective agreement, wage determination, court order or arbitration award. This Court is guided by the provision of Section 19 of the Employment Act.
The deduction of Ksh.15 000 is legitimate, and what is owed and unpaid is recoverable before the appellant can be paid any owing terminal dues.
On the underpayments, the appellant did not contest that he worked in Kilifi County. He had not produced any certification of being a plumber, which was not produced before the trial court and was not part of the letter of appointment issued on 19 February 2014.
The Wage Orders applied are assessed based on the allocation for Nairobi, Mombasa, and Kisumu (Cities) instead of all other areas as regulated under the Wage Orders.
The trial court addressed these wage orders well, and indeed, in response, the respondent made an analysis and contradistinction of the applicable rate. The appellant was paid above the minimum wage.
There was no underpayment.
On costs awarded to the respondent, taking into account that there was unfair treatment of employment as analyzed above, each party should meet its costs.
Accordingly, on the appeal, the analysis above, the judgment in Kilifi CMELRL No.E052 of 2021 is hereby reviewed in the following terms;
The appellant's employment was terminated unfairly by the respondent;
- Compensation zero (0);
- Notice pay ksh.20,000;
- Pay for 20 days Ksh.13, 334;
- Dues above are to be paid less what the appellant owes the respondent in loan and salary advance;
- Each party bears its costs for the trial court proceedings and this appeal.
Delivered in open court at Mombasa this 6 day of February 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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