Antony Ondara v Weidner East Africa Limited [2018] KEELRC 186 (KLR)
The bottom line
#A Kenyan employer who stops paying salaries without explanation or a payment plan forces a resignation that courts treat as unfair dismissal — and must pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether non-payment of salary amounted to constructive dismissal constituting unfair termination
The respondent's failure to pay salary for three months, without explanation or arrangement, entitled the claimant to resign, which the court construed as constructive dismissal and unfair termination
The respondent admitted owing three months' salary due to cash-flow problems. The court held that failure to pay salary places an employee in hardship and that the employer was obliged to explain the financial difficulties, offer arrangements for payment of arrears, or at worst terminate the contract lawfully. Having furnished no such evidence, the respondent's conduct could only be construed as constructive dismissal, hence unfair termination of service. The counterclaim for notice pay failed accordingly.
Whether the claims for commission and bus fare were proved
Disallowed for want of evidence
Although the claimant pleaded a 5% commission on sales and Kshs 500 per qualifying repair, in cross-examination he stated he had no document to show there were sales of Kshs 168,000. The respondent's witness denied entitlement to commission, stating the claimant was a technician and not a sales person, and that transport was provided for away jobs. The court found no evidence supported these heads and disallowed them.
Legal principles established
#- Salary is an entitlement for work done and failure to pay it for a prolonged period places the employee in hardship
- An employer who fails to pay salary must explain the financial difficulties and arrangements for payment, or lawfully terminate the contract; failing that, the employee's resignation is constructive dismissal
Court orders
#- 1.Judgment against the respondent for three months' salary arrears of Kshs 45,600
- 2.Seven months' salary of Kshs 106,400 as compensation for unfair termination of service
- 3.Items (a) and (b) to be subject to statutory deductions
- 4.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antony Ondara v Weidner East Africa Limited [2018] KEELRC 186 (KLR)", Case Analysis (2018). Cause No 896 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/186/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.