Murema v Treadsetters Tyres Limited (Cause 801 of 2019) [2023] KEELRC 2136 (KLR)
The bottom line
#A Kenyan court dismissed a manager's claim for unfair dismissal, ruling that being investigated for suspected workplace fraud is not constructive dismissal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was constructively dismissed by the respondent
- 2.Whether the summary dismissal of March 12, 2019 was lawful and justified
- 3.Whether the claimant was entitled to mileage and internet allowances
- 4.Whether the claimant was entitled to accrued leave days
- 5.Whether pension benefits were payable
Key legal issues
#Whether the claimant was constructively dismissed
No; the claimant failed to set out in detail the bad treatment, and the respondent's actions in investigating suspected fraud could not amount to constructive dismissal
The court applied the Coca Cola and Western Excavating tests. The respondent had reasonable suspicion of fraud and negligence during the claimant's tenure as Systems Manager; invoices were deleted at night and the claimant spent considerable time online on Fridays. A forensic audit was conducted and the claimant was called to explain. Such treatment was not sufficiently bad to amount to a fundamental breach entitling the claimant to treat himself as dismissed.
Whether the claimant was entitled to mileage and internet allowances
No; the claimant admitted his contract never provided for these allowances
In cross-examination on his terms of service the claimant conceded that his contract contained no provision for mileage or internet allowances. Having admitted this, the claims for Kshs 70,000 per month mileage and Kshs 2,000 per month internet allowance could not stand, and both were disallowed.
Whether the claimant was entitled to accrued leave days
Claim not sustained; the summary dismissal letter promised payment of accrued leave and the claimant never alleged non-payment of terminal dues
The letter of summary dismissal stated the claimant would be paid accrued leave days in addition to salary due. The claim could only succeed if terminal dues were not paid, but no such allegation was made at trial, so the leave claim failed.
Legal principles established
#- Constructive dismissal occurs where an employee is forced to leave his job against his will because of the employer's conduct; the treatment must be sufficiently bad that the employee regards himself as unfairly dismissed
- Per Lord Denning, constructive dismissal requires a significant breach of the contract going to its root, and the employee must not affirm the contract by continuing in employment
Court orders
#- 1.The claim is dismissed
- 2.Costs awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment dispute (statement of claim filed November 27, 2019)
Relief refused
#Compensation for constructive dismissal (12 months' salary Kshs 2,965,306.08)
Constructive dismissal not established; respondent had reasonable suspicion of fraud and negligence and called on the claimant to explain
One month's salary in lieu of notice (Kshs 247,108.84)
Follows rejection of unfair/constructive dismissal claim
Mileage allowance (Kshs 1,190,000) and internet allowance (Kshs 36,000)
Claimant admitted his contract never provided for mileage and internet allowances
Leave claim (Kshs 370,663.26)
Summary dismissal letter stated accrued leave would be paid; no allegation made that terminal dues were not paid
Accrued pension benefits
Not established in evidence
Costs
The claim is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the claim is found without merit and is hereby dismissed with costs.
The claim for unfair termination on account of constructive dismissal is therefore rejected.
The Claimant in his evidence admitted that his contract never provided for payment of mileage and internet allowance hence this claim is also disallowed.
constructive dismissal occurs where an employee is forced to leave his job against his will, because of his employer's conduct
if he continues for any length of time without leaving, he will lose his right to treat himself as discharged
Issues in the judgment
#Arithmetical inconsistency in the pleaded compensation figure: 12 x Kshs 239,000 is pleaded as Kshs 2,965,306.08, and 1 x Kshs 239,000 is pleaded as Kshs 247,108.84, figures that do not correspond to the stated monthly salary
Claim pleads salary of Kshs 247,000 while the claim amounts use Kshs 239,000 and the claimant in cross-examination admitted a salary of Kshs 167,442
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murema v Treadsetters Tyres Limited (Cause 801 of 2019) [2023] KEELRC 2136 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2136/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.