Simon Ngugi Kamau v Silpack Industries Limited [2015] KEELRC 1361 (KLR)

The court outlined the doctrine of constructive dismissal, importing the South African test in Pretoria Society for the Care of the Retarded v Loots and the local approach in Maria Kagai Ligaga and Marete v Attorney General, holding that the employee must prove intolerable conditions created by the employer that repudiated the contract. The Claimant produced a handwritten medical note not conforming to section 30 of the Employment Act, declined to co-operate at meetings convened to discuss re-deployment, and instead instructed advocates to demand terminal dues while absent from work. By withdrawing from the workplace, the Claimant removed the employer's obligation to address his concerns, and equity would not assist him.

The court held that although damages for breach of the Occupational Safety and Health Act were claimed, the Claimant did not outline how the breach occurred, how he was affected in relation to his employment, or the nature of damages sought. Claims once outlined require proof, and the medical note submitted gave only a recommendation, not a certification that the Claimant suffered a medical condition warranting support or future attention. Consequently no damages, loss or negative result was established.

On the finding that the Claimant was summarily dismissed for long unjustified absence, no compensation or notice pay is due. Damages under the Occupational Safety and Health Act were not proved. Service pay under section 35 of the Employment Act arises only where statutory dues are not remitted; the payslip showed deductions and remittances to NSSF and NHIF, so that claim was baseless. Claims for years of service premised on constructive dismissal could not stand once constructive dismissal was rejected. The claim failed entirely.