David Okinyi Owuor v Super Security Limited [2020] KEELRC 1473 (KLR)
The bottom line
#A Kenyan court ruled that underpayment alone doesn't prove constructive dismissal, but still awarded a security guard Kshs. 227,475 in unpaid wages and overtime.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
No constructive dismissal was established; the Claimant resigned on his own motion.
The Claimant did not prove he raised complaints with the Respondent about his treatment or salary. He accepted the salary he was paid all along per his contract, never sought an explanation for alleged underpayment, and simply left. The court found no alteration of the initial contract or conduct by the Respondent amounting to constructive dismissal.
Duration of employment and entitlement to underpayment and overtime
The court took the employment period as one year (per the Respondent's evidence and the Claimant's cross-examination admission) and awarded underpayment for 12 months and overtime at 4 hours per day for one year.
The Claimant claimed employment from 1st March 2013 while the Respondent said 31st January 2014. The Claimant admitted in cross-examination he worked for the Respondent for one year, and the court adopted that period for calculating underpayment at the difference between Kshs. 12,548.50 and Kshs. 6,000 paid, plus overtime of 4 hours daily as the Respondent admitted a 6pm to 6am shift.
Legal principles established
#- For constructive dismissal to occur, the employee must demonstrate that the employer was no longer interested in honouring the terms of the employment contract such that the employee had no option but to resign
- Underpayment of wages alone does not amount to constructive dismissal where the employee accepted the salary and did not seek an explanation or raise complaints with the employer
Court orders
#- 1.Respondent to pay underpayment of salary for 12 months: Kshs. 6,548.50 x 12 = Kshs. 78,582
- 2.Respondent to pay overtime pay of 4 hours per day for 1 year: Kshs. 148,893.4
- 3.Total award of Kshs. 227,475.44 less statutory deductions
- 4.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Cause filed under the Court's employment jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Okinyi Owuor v Super Security Limited [2020] KEELRC 1473 (KLR)", Case Analysis (2020). Cause No. 1667 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1473/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.