The Employment and Labour Relations Court has ruled against gaming company Usiku Games Entertainment Ltd, ordering it to compensate its former Communications Director, Mr Alex Owiti, for wrongful and constructive dismissal.
In a judgment delivered last Friday (Case No. ECC075/2023), Justice Bernard Odongo found that the company had created an “intolerable work environment,” forcing the employee to resign. The court directed Usiku Games to pay Mr. Owiti the equivalent of six months’ salary, settle his pending leave days, and issue him a certificate of service.
Additionally, the court awarded the claimant the costs of both the claim and the counterclaim, plus interest calculated from the date of the judgment.
The case arose after Mr Owiti resigned in protest due to a period of delayed salaries and threats of demotion. The court heard that when the employee pressured management to regularize salary payments as per his contract, the employer retaliated by alleging “underperformance” despite having praised his work on social media and via email just a month prior.
In a strongly worded ruling, Justice Odongo dismissed the employer’s defense, emphasizing that paying salaries on time is a mandatory contractual obligation, not a discretionary act of goodwill.
“Payment of an employee’s salary on the due date is not a favour which the employer extends to the employee. This is the right to the employee. Conversely, it is the duty of the employer to ensure salary is paid on [the] appointed date,” Justice Odongo stated.
The court accepted the plea of constructive dismissal, a situation in which an employee is forced to quit because the employer has made working conditions intolerable.
Justice Odongo highlighted the severity of the claimant’s financial distress, noting that he was being pursued by auctioneers for rent arrears while the employer still demanded his presence at the office.
“Nothing can be more intolerable than an employer who has not paid your salary pushing you to be at work despite being informed [that] auctioneers are threatening to levy distress against you and your family for non-payment of rent,” the Judge ruled. “As such, he had every reason to throw in the towel by resigning and pleading constructive dismissal.”
The court also dismantled Usiku Games’ claim that Mr Owiti was underperforming. The judge noted that the company failed to provide any evidence of preset performance targets, an evaluation matrix, or a Performance Improvement Plan (PIP).
“To say the least, the respondent’s decision in this respect was arbitrary,” the ruling read.
Speaking after the ruling, Mr. Cyprian Onyony, Managing Partner at Onyony & Advocates and lead counsel for the claimant, praised the court for its efficiency.
“We filed this matter in February 2023, and we appreciate the court’s efficiency in concluding it. The judgment reinforces the importance of due process in employment matters. We trust that Usiku Games will comply with the orders,” said Mr. Onyony.
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