Andrew Khaemba v Afriscan Kenya Limited [2018] KEELRC 16 (KLR)
The bottom line
#A Kenyan employee who resigned amicably won his unpaid dues and pension money with interest, but lost his constructive dismissal claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the resignation amounted to constructive dismissal
The claim for constructive termination failed because the claimant did not attach the resignation letter and his own demand letter described the separation as amicable and mutual
The court set out the two-limb test for constructive dismissal from case law. It then found the claimant had not attached the resignation letter, a crucial document whose contents were necessary to show the resignation arose from the respondent's conduct. Further, the claimant's advocate's demand letter of 5th July 2016 stated the claimant left employment amicably under a mutual agreement, undermining the claim of constructive dismissal. The claimant's own conduct in opting for a mutual end contributed to the separation.
Terminal dues and unremitted pension contributions
The respondent admitted owing Kshs.982,456.00 in unremitted dues, which is payable with interest from 31st May 2015
The respondent's advocates' letter of 25th July 2016 acknowledged owing unremitted deductions of Kshs.982,456.00. This was not challenged. Because the respondent withheld the sums since 2015, forcing the claimant to sue, interest at court rates runs from the date the sums fell due, 31st May 2015, until payment in full.
Unpaid salary
Only one month's salary of Kshs.284,875.00 was due, not the five months claimed
By his own records the claimant admitted he was paid his due salaries save for one month during his leave period, and he resigned effective 31st May 2015. The claim for salaries up to June 2015 was not justified. The court awarded the one month's unpaid salary of Kshs.284,875.00 with interest at court rates from the date due.
Legal principles established
#- Constructive dismissal occurs where an employee resigns by reason of the employer's conduct owing to intolerable behaviour, under two facets: unilateral alteration or breach of the employment contract to the employee's detriment, and intolerable working conditions
- Where an employer by action or omission materially breaches the contract or makes it impossible for the employee to perform, the contract is deemed constructively terminated
- Where no defence or response is filed within the prescribed period, the court may upon application by the claimant direct the matter to proceed by formal proof
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of Kshs.982,456.00 owing and unremitted dues
- 2.Payment of unpaid salary of Kshs.284,875.00
- 3.Both amounts to attract interest at court rates from the date due, 31st May, 2015, until payment in full
- 4.The claimant is awarded costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016, Rules 13 and 15
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Khaemba v Afriscan Kenya Limited [2018] KEELRC 16 (KLR)", Case Analysis (2018). Cause No. 479 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/16/eng@2018-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.