Nick Musili Musyoka v Dac Avition (E.A) Limited [2021] KEELRC 12 (KLR)
The bottom line
#A Kenyan pilot won unpaid salary, allowances and leave worth millions, but lost his constructive dismissal claim because he never actually resigned in writing.
What this practically means
#Executive summary
#Key legal issues
#Non-payment of salary and allowances
The salary from November to December 2019 and cash allowances from May to December 2019 were due and uncontested and were awarded in full
Under section 18 of the Employment Act wages are due at the end of each month for employees employed for a period exceeding one month. The respondent admitted non-payment through memos and letters proposing payment plans, and no defence was filed. The court found the dues for time worked payable in full.
Constructive dismissal
The claim of constructive dismissal failed; the claimant was found to have abandoned employment and cannot claim notice pay or compensation
Applying the Coca Cola test, the employer's non-payment gave the claimant good cause to resign, but the claimant never tendered a letter of resignation; the advocates' demand letter was insufficient. Failure to resign following the breach constitutes abandonment, which amounts to gross misconduct without good cause in law.
House allowances
The claim for house allowances from 2014 to 2019 was rejected as housing was not a contract term and the claimant was not a protected employee under the Wage Orders
Clause 5.4 of the contract only provided for housing or payment of an allowance where the claimant travelled on assignment. Since the claimant did not earn a minimum wage regulated under the Wage Orders, the statutory entitlement to house allowance did not apply, so the claim lacked merit.
Medical allowance refund
The refund of Ksh.18,845 for alternative medical insurance was refused because the contractual medical benefit was non-monetary
The contract provided medical insurance as a non-monetary benefit. Where it was not provided, the claimant's remedy was to pursue the dispute resolution mechanism, not to self-insure and claim a refund. He also did not show he required medical cover and used personal funds for treatment.
Leave days
84 days of untaken leave were awarded at $7,476 plus Ksh.734,520.64 as due under the contract and section 28 of the Employment Act
Leave is a contractual and statutory entitlement under section 28 of the Employment Act. The respondent did not contest the tabulation of 84 days owed, and the court found the claim justified and awarded it as claimed.
Mode of payment and certificate of service
USD dues may be converted and paid in Kenya Shillings under section 17 of the Employment Act, and a certificate of service must issue under section 51
The court found the order seeking payment of terminal dues in Kenya Shillings lawful and justified under section 17 of the Act. The certificate of service is a statutory entitlement for the duration of employment under section 51 and was ordered to issue.
Legal principles established
#- Subjecting an employee to prolonged periods of non-payment of salary amounts to an unfair labour practice prohibited under Article 41 of the Constitution
- Constructive dismissal requires a repudiatory breach going to the root of the employment contract, proved by the employee on an objective test with a causal link to the resignation
- A letter of demand from advocates is not commensurate to a letter of resignation in a constructive dismissal claim
Court orders
#- 1.Unpaid basic salary from November to December 2019 of Ksh.459,431.36
- 2.Unpaid cash allowances from May to December 2019 of $21,360
- 3.84 leave days not taken: $7,476 plus Ksh.734,520.64
- 4.Dues in United States Dollars to be converted and paid in Kenya Shillings
- 5.Certificate of service to be issued pursuant to section 51 of the Employment Act, 2007
- 6.Dues payable within 30 days, thereafter with interest at court rates from date due until paid in full
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nick Musili Musyoka v Dac Avition (E.A) Limited [2021] KEELRC 12 (KLR)", Case Analysis (2021). Cause No. 109 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/12/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.