Tresor Limited v Rotich (Employment and Labour Relations Appeal E054 of 2022) [2024] KEELRC 2729 (KLR)
The bottom line
#Kenya's Employment Court confirmed that sending an employee on indefinite unpaid leave counts as constructive dismissal, so employers can't sidestep termination rules this way.
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 Respondent was constructively dismissed
- 2.Whether the compensatory damages awarded to the Respondent by the trial court should stand
Key legal issues
#Whether placing an employee on indefinite non-working leave without pay, pending an audit, amounted to constructive dismissal
Yes. The letter of 16th March 2021 sent the Respondent on indefinite unpaid leave without specifying duration or pay, leaving him in suspense; this entitled him to treat the employment as constructively terminated, amounting to unfair and unlawful termination
The court adopted the contractual and unreasonable tests from Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga. The employer's letter directed the Respondent to hand over and proceed on non-working leave 'until further notice'. The employer admitted it had not terminated the services yet stopped paying salary as agreed and gave no resumption date. The court held these conditions were intolerable, justifying the employee in deeming himself constructively dismissed, which the trial court correctly found to be unfair and unlawful termination.
Whether the trial court's award of compensatory damages (3 months' salary plus one month in lieu of notice, totalling Kshs. 80,000) should stand
Yes. Having affirmed the finding of constructive dismissal amounting to unfair termination, the court saw no justification to disturb the award
The appellant argued the Respondent's employment was never terminated and the award should be set aside. The court, however, affirmed the finding that the constructive dismissal constituted unfair and unlawful termination. On a first appeal, the court reconsidered the evidence and concluded the trial court was right on both liability and compensation, holding there was no justification to interfere with the trial court's award of Kshs. 80,000.
Legal principles established
#- Constructive dismissal is established where working conditions imposed by the employer (such as indefinite unpaid leave with no duties) are intolerable and entitle the employee to deem the employment terminated; such constructive dismissal amounts to unfair and unlawful termination
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment of the trial court dated 25th November 2022 awarding the Respondent compensatory damages of 3 months' salary and one month's salary in lieu of notice (total Kshs. 80,000) stands
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court (Eldoret CMELRC No. E054 of 2022)
- E054 of 2022
- Jurisdiction invoked
- First appeal from the magistrates' court (ELRC appellate jurisdiction); no specific provision cited
Relief refused
#Appellant's prayer that the appeal be allowed and the trial judgment set aside and dismissed with costs to the Appellant
The court found the trial court was right in concluding that the Respondent had been constructively dismissed and had no justification to disturb the award
Costs
The appeal 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.
The appeal is accordingly dismissed with costs to the Respondent.
I therefore find that the trial court was right in concluding that the Respondent had been constructively dismissed. The court was also right in concluding that the constructive dismissal amounted to unfair and unlawful termination.
These were clearly conditions that were not tolerable and entitled the Respondent to deem his employment as having been constructively terminated as was held in the cases cited by the parties in their submissions.
This being a first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified.
Issues in the judgment
#Judgment alternates the Respondent's gender pronouns
Internal date inconsistencies: Statement of Claim dated 2nd June 2021 in paragraph 1 but the appeal grounds refer to 'Statement of Claim dated 25th June 2022', and the constructive dismissal letter is dated 16th March 2021 though the Appellant's submissions refer to a letter dated 16th March 2022
Neutral citation and case number of the instant appeal are not stated on the face of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tresor Limited v Rotich (Employment and Labour Relations Appeal E054 of 2022) [2024] KEELRC 2729 (KLR)", Case Analysis (2024). ELRC Appeal (Eldoret CMELRC No. E054 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2729/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.