Raphael Shitimu Asibwa v Yara East Africa Limited [2018] KEELRC 1671 (KLR)
The bottom line
#An employee who resigned claiming forced-out treatment lost everything because his resignation letter and contract terms told a different story.
What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal
Not established; the resignation notice gave other reasons and the contract allowed the employer to vary duties
The Court applied the test that constructive dismissal requires the employer's conduct to be a significant breach going to the root of the contract, citing Western Excavating (ECC) Ltd v Sharp. The Claimant's resignation notice made no reference to a hostile work environment or demands for more remuneration, and he could not identify to whom he made such requests. The contract expressly permitted variation of duties, so the Court found no constructive dismissal.
Service pay/gratuity
Not payable; NSSF registration and contributions exclude service pay and no contractual gratuity was proved
Pay slips showed the Respondent deducted and remitted contributions to the National Social Security Fund. Under section 35(5) & (6) of the Employment Act, 2007, such an employee is not entitled to service pay. Any contractual gratuity claim failed for want of proof of entitlement.
Claim for dual-role remuneration
Failed; the contract allowed the employer to vary designation and duties at its discretion
Clause 2 of the contract allowed the Respondent to change the Claimant's designation and duties at its discretion and clause 10 allowed terms to change from time to time. The Claimant was designated Health Environment and Safety Qualities Manager/Inventory Manager without a pay change, but apart from asserting more responsibilities he offered no foundation for the claim.
Legal principles established
#- For constructive dismissal, an employee must demonstrate that the employer's conduct was a significant breach going to the root of the contract
- An employee registered with NSSF with contributions made is not entitled to service pay under section 35(5) & (6) of the Employment Act, 2007
Court orders
#- 1.The Cause be dismissed with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Shitimu Asibwa v Yara East Africa Limited [2018] KEELRC 1671 (KLR)", Case Analysis (2018). Not stated in the judgment (Cause filed 29 May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1671/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.