Simon v Board of Management St Agnes Gaukene Girls Secondary School (Employment and Labour Relations Appeal E006 of 2023) [2025] KEELRC 2427 (KLR)
The bottom line
#Kenya's ELRC ruled a Covid-era school suspension wasn't unfair dismissal, but the employee still recovered unpaid salary and service pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether appellant voluntarily deserted employment or she was unlawfully dismissed by the respondent.
- 2.Whether the appellant is entitled to the reliefs sought in her Statement of Claim.
Key legal issues
#Whether the appellant's absence from duty amounted to desertion or the suspension amounted to unlawful/constructive dismissal
Neither: the appellant was on lawful suspension, and the non-payment of half salary was justified by Covid-19 closures; she neither deserted nor was dismissed.
The reason for absence was the suspension letter dated 9th April 2020. The County Director of Education's reversal directive was not complied with, but the trial court's conclusion of desertion was also wrong. Schools were closed by Government directive, making the disciplinary process impossible and justifying suspension of salary, with one month's notice of the half-salary suspension given. Judicial notice was taken of the Covid-19 closure of learning institutions.
Whether the appellant was entitled to salary arrears and other reliefs
She was entitled to full salary from 1st June 2020 to 6th October 2020 and the withheld half salary for April and May 2020, totalling Kshs.145,730; the unchallenged service pay award of Kshs.476,425 was left undisturbed.
Having found no dismissal, the court held the appellant voluntarily terminated her contract by filing suit claiming terminal dues without prior notice, so no compensation for unlawful termination was due. However, she remained entitled to unpaid salary for the period of suspension until she terminated the contract. The service pay award stood as the respondent filed no cross-appeal.
Legal principles established
#- On a first appeal the court must re-evaluate the evidence on record and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
- An employee who files suit claiming terminal dues without prior notice voluntarily brings her employment contract to an end, barring a claim for unlawful termination.
Court orders
#- 1.The appellant is awarded salary arrears for April-October 2020 equalling to Kshs.145,730.
- 2.The award of service pay of Kshs.476,425 by the trial court is not disturbed.
- 3.The appellant is awarded costs of the appeal and the court below plus interest at court rate from the date of the court judgment.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court, Hon. Mwangi - SPM)
- Not stated
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the lower court (the court exercised its first-appeal mandate to re-evaluate evidence)
Relief refused
#Declaration that her suspension amounted to unlawful and unfair termination of employment
The suspension on half salary and subsequent suspension of half pay did not amount to constructive dismissal or unlawful termination
Compensatory damages for unlawful termination
The claim for unlawful termination does not arise as the appellant voluntarily terminated her employment contract by filing suit claiming terminal dues
Costs
The appellant is awarded costs of the appeal and the court below plus interest at court rate from the date of the court judgment.
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.
Consequently, I find that up to the date of filing the suit on 6th October 2020, there was neither dismissal by the respondent nor desertion of duty by the appellant.
Consequently, I hold that the claim for unlawful termination does not arise as the appellant voluntarily terminated her employment contract during Covid-19 Pandemic.
Therefore I will not disturb the same.
The appellant is awarded salary arrears for April-October 2020 equalling to Kshs.145,730.
The appellant is awarded costs of the appeal and the court below plus interest at court rate from the date of the court judgment.
Issues in the judgment
#The judgment inconsistently describes the letter of 30th May 2020: the background says the respondent notified the appellant it would stop half pay, but paragraph 21 reproduces the letter as addressed by the respondent to 'the respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon v Board of Management St Agnes Gaukene Girls Secondary School (Employment and Labour Relations Appeal E006 of 2023) [2025] KEELRC 2427 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2427/eng@2025-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.