13.In counter-claim, the responder’s case is that in April 2020 following COVID pandemic, the claimant made arrangements with the parents that would pay 90% of the fees but the parents disagreed and a suit was filed at the High Court on 13 May 2020. The claimant informed the teachers including the respondent that only 70% of their salary would be paid and a dispute arose with the teachers.
14.In July and August 2020 the claimant without any consultations reduced the salary due to 50%.
15.Following the High Court decision on 17 November 2020 directing the parents to pay school fees, the claimant through letter dated 18 November 2020 instructed the parents to pay fees arrears and hence was able to recover unpaid schools fees and the salary cuts should have been settled.
16.The counter-claim is for Ksh.350,000 of unpaid salaries May 2020 pay cut of 30% Ksh.37,500;
17.June 2020 pay cut of 30% Ksh.37,500; July 2020 pay cut of 50% Ksh.62,500; August 2020 pay cut of 50% Ksh.62,500;
18.September 2020 pay cut of 30% Ksh.37,500; October 2020 pay cut of 30% Ksh.37,500; November 2020 pay cut of 30% Ksh.37,500; December 2020 pay cut of 30% Ksh.37,500;
19.The claimant failed to issue the respondent with a revised contract upon change of terms in accordance with Section 10(5) of the Employment Act and he is entitled to the counter-claim with costs.
20.The respondent did not attend hearing.
21.At the close of the hearing, parties filed written submissions which are analysed and the issues which emerge for determination are whether the respondent wrongfully terminated his employment; whether there counter-claim is justified and who should pay costs.
22.The employment of the respondent by the claimant is not contested. There was a two years contract ending 30 June 2021 at a salary of Ksh.125,000 per month.
23.It is also not in dispute that in March 2020 COVID- 19 was declared a pandemic and it affected many sectors including schools and other institutions of learning and including court operations and this is evidenced by the parents of the claimant’s school filing High Court – VS & 43 others (acting on their behalf and also acting as parents and next of friend of students learning at the Mombasa Academy v Nyali Academic Services Limited t/a Mombasa Academy & another  eKLR. the parents were challenging the requirement to pay full school fees.
24.The claimant’s case is that school fees is the only source of income and could not pay the teachers and hence, the pay was reduced. The claimant has filed letter dated 20 May 2020 by several teachers protesting the salary reduction without consultation. The teachers, including the claimant, noted that there was an ongoing suit with parents and would have impact with regard to collection of school fees. The teachers proposed that;
25.It seems the respondent continued to work until what he terms as his resignation on 2 March 2021 prompted by frustration and dissatisfaction with the working environment an inconsistent salary payments by the respondent. The respondent has hence counter-claimed for unpaid salaries from May to December 2020. Noteworthy, nothing is claimed under the period just prior and leading to alleged frustration and dissatisfaction with the working environment.
26.The respondent has not filed any written notice terminating employment on the noted grounds of frustrations and dissatisfaction of work environment.
27.Section 36 of the Employment Act, 2007 (the Act) requires an employee seeking to terminate employment without notice to pay in lieu of notice;
28.A claim that the respondent felt frustrated and dissatisfied with his work environment is not sufficient cause to abandon his employment without good cause however justified he felt under the circumstances. The law exists to protect both the employer and employee at the shop floor. To allow a practice that a dissatisfied employee would result to abandonment of employment at will would cause chaos at the shop floor.
29.The notice of 20 May 2020 by the teachers taken into account, such then alerted the claimant, faced with a suit by the parents and the teachers cognisant that indeed the COVID pandemic had affected operations, the respondent went through this phase until after the end of it in February 2021 only for him to abandon his employment without notice or giving any reasons.
30.The respondent cannot justify his inaction in this case. He should and ought to have given the claimant notice of his exit or payment in lieu thereof.
31.Under the fixed term contract, the respondent was required to issue notice of termination of employment in terms of clause (6) that is by giving of a term’s written notice.
32.The term’s written notice is not defined. The application of 3 months is without any basis based on Section 35 and 36 of the Act and a month notice pay is hereby found due from the respondent to the claimant all at Ksh.125,000.
33.On the counter-claim, in employment and labour relations, any employer who is faced with a financial challenge and is unable to pay salaries is insulated under Section 10(5), 13 or 40 of the Act. The employer is allowed to invite the affected employee to agree to change of employment terms and conditions and the employee must consent in writing to such changes. A record of the changed terms must be kept by the employer. Where the employee fails to give such consent, the motions of Section 40 of the Act are available to the employer. Such is lawful and in terms of Section 45(2)(b) where there is an operational need leading to termination of employment, this is lawful;
34.Hence, an employer has a legal duty to ensure adherence to the law even where there is a pandemic such as the case was in the year 2020. The claimant ought to have secured its rights by having the respondent consent to reduced salaries and in the alternative, apply redundancy provisions. The letter and notice of teachers on 20 May 2020 was such an invitation to enter into a dialogue for either deferred payments but there is no response by the claimant as the employer and hence the opportunity was lost.
35.The respondent is entitled to his salaries under the fixed term contract as counter- claimed. Due to the inaction by the claimant to secure itself within the legal parameters permissible, lack of funds and payment of school fees from the parents and the suit filed as a result is not a justification to deny the respondent his salaries.
36.With regard to costs, the claim successful and the counter-claim successful, each partyNshall meet own costs.