Exotic Penina Fields Group Limited (F.T.A Carnation Plants Limited) v Mose (Appeal 27 of 2022) [2024] KEELRC 1299 (KLR)
The bottom line
#Kenya's Employment Court ruled an employee who refused to return after a COVID unpaid-leave recall was not unfairly terminated, wiping out the award.
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 trial magistrate erred in finding that the appellant unfairly and unlawfully terminated the respondent's employment
- 2.Whether the trial magistrate erred in awarding one month's salary in lieu of notice
- 3.Whether the trial magistrate erred in awarding salary for March and April 2020
Key legal issues
#Unfair termination
No unfair termination was established; the appellant honoured the temporary separation agreement and recalled the respondent, who elected not to resume duty
The respondent signed a separation agreement electing unpaid leave from 02.04.2020, acknowledging he would be recalled. The appellant sent an SMS recalling him to work. The respondent filed suit on 24.02.2021 and did not explain failing to resume duty. The trial court erred in inferring bad faith where the COVID crisis had not ended and no notice to sue had been served.
Notice pay
Not due since no termination was established
Having found that the employment was not terminated but that the respondent chose not to return following recall, the foundation for an award of one month's salary in lieu of notice fell away.
Salary for March and April 2020
Awards set aside as contrary to the parties' agreement
The respondent signed to go on unpaid leave from 02.04.2020, so the April salary claim contravened the agreement; the agreement made no reference to unpaid March 2020 salary. The trial court awards were therefore contrary to the evidence.
Legal principles established
#- Where an employee voluntarily elects unpaid leave under a COVID-19 separation agreement and is recalled to work but fails to resume duty, no unfair termination is established
- Where there is no termination, notice pay is not due
- Salary claims contrary to an agreed separation arrangement during the COVID-19 pandemic cannot stand
Court orders
#- 1.The trial Court's award of Kshs.28,490.30, costs and interest is set aside and replaced with dismissal of the suit with no costs
- 2.Each party to bear own costs of the appeal
- 3.The Deputy Registrar to return file to Machakos sub-registry forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Lower Court (Magistrates' Court, Machakos)
- Not stated (statement of claim dated 24.02.2021)
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeal from the lower court (memorandum of appeal dated 01.12.2022); specific provision not stated in judgment
Relief refused
#Respondent's claims for declaration of unfair termination, notice pay, service pay, overtime, public holidays, night shift allowance, underpayment and 12 months' compensation
No unfair termination established; respondent elected not to return to work after recall under the COVID separation agreement
Costs
Each party to bear own costs of the appeal; the suit dismissed with no costs (trial court award of costs and interest set aside)
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 view of the evidence, the Court finds for the appellant that there was no unfair termination established.
The trial Court's award of Kshs.28,490.30, costs and interest is set aside and replaced with dismissal of the suit with no costs.
Each party to bear own costs of the appeal.
Issues in the judgment
#Notice pay award figure differs between claim (Kshs. 9,496.77) and trial judgment (Kshs. 9,494.77)
Trial court award figure stated inconsistently - item (c) shows Kshs.18,993.54 with Kshs.28,490.30 in parentheses, and the final order sets aside Kshs.28,490.30
Date of the recall text message appears inconsistent with narrative (message 'send on 22.02.2022' although the suit was filed 24.02.2021 and the message is discussed as preceding the suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Exotic Penina Fields Group Limited (F.T.A Carnation Plants Limited) v Mose (Appeal 27 of 2022) [2024] KEELRC 1299 (KLR)", Case Analysis (2024). Not stated in judgment (memorandum of appeal dated 01.12.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1299/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.