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ELRCDismissedNot stated in the judgment (Cause filed 29 May 2014)· [2018] KEELRC 1671 (KLR)

Raphael Shitimu Asibwa v Yara East Africa Limited [2018] KEELRC 1671 (KLR)

Employment and Labour Relations Court
29 June 2018
800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed as Warehouse Manager by the Respondent from 16 June 2006, resigned by notice dated 25 November 2013 effective 27 December 2013, citing dog breeding and further education, and agreed to extend service to 30 January 2014. He sued in May 2014 claiming Kshs 1,430,000/- as remuneration for holding two substantive managerial roles for 13 months without pay, and Kshs 425,328/- as gratuity/service pay. The Respondent countered that the contract allowed it to vary his designation and duties at its discretion, that remuneration was commensurate with his responsibilities, and that service pay was inapplicable because he was registered with and contributions were made to the NSSF. The Court applied the constructive dismissal test from Western Excavating (ECC) Ltd v Sharp and found no constructive dismissal: the resignation notice made no reference to a hostile work environment or pay demands, and the Claimant could not say to whom he had complained. Around January 2013 he had been designated Health Environment and Safety Qualities Manager/Inventory Manager without additional pay, but the contract clauses permitted such variation. On service pay, his NSSF registration and contributions excluded entitlement under section 35(5) & (6) of the Employment Act, 2007, and no contractual gratuity was proved. The Court dismissed the Cause with no order as to costs.

Key legal issues

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01

Constructive dismissal

Holding

Not established; the resignation notice gave other reasons and the contract allowed the employer to vary duties

Reasoning

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.

p. 2
02

Service pay/gratuity

Holding

Not payable; NSSF registration and contributions exclude service pay and no contractual gratuity was proved

Reasoning

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.

p. 2
03

Claim for dual-role remuneration

Holding

Failed; the contract allowed the employer to vary designation and duties at its discretion

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Cause be dismissed with no order as to costs

Authorities

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Legislation

  • Employment Actsection 35(5) & (6)

Cases cited (1)

  • Western Excavating (ECC) Ltd v Sharp
    (1978) IRLR 27
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Cause)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.