Aura v Transnile Enterprises Limited (Cause 280 of 2019) [2023] KEELRC 2640 (KLR)
The bottom line
#A Kenyan court refused a constructive dismissal claim but ordered the employer to pay the worker his unpaid salary, with interest and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether non-payment of salary and alleged duplication of duties amounted to constructive dismissal
No constructive dismissal; the claimant voluntarily resigned and substantially contributed to the financial difficulties that caused the salary delays.
The court applied the contract test from Western Excavating v Sharp and Kenyan authorities. The claimant, as Site Agent, contributed to a measurement dispute with the KeRRA Resident Engineer that delayed payment for milestone 5 for nine months, causing the respondent's financial crisis and the salary arrears. The court found no unilateral employer conduct making conditions intolerable, and viewed the resignation as a pre-emptive move to evade impending disciplinary action.
Whether the claimant was discriminated against
No discrimination established; hiring of Engineer Mugo was justified and withholding of balance pending disciplinary action was not discriminatory.
The claimant did not prove on a balance of probabilities that Engineer Mugo was engaged to replace him; the court accepted that the respondent's circumstances justified additional help for the Site Agent's vital role. Withholding the claimant's outstanding salary balance pending disciplinary action for unauthorised absence was not discriminatory conduct.
Entitlement to arrear salary
The claim for arrear salary of Kshs.1,874,838.71 succeeded and the respondent was ordered to pay it with interest.
Although the constructive dismissal claim failed, the court found the respondent in error for failing to pay the claimant his terminal benefits including arrear salary upon resignation. It identified the arrear salary of Kshs.1,874,838.71 net as the only viable claim and ordered payment with interest from filing suit until payment in full.
Legal principles established
#- Where an employee alleges constructive dismissal and the employer denies dismissal, the burden lies on the employee to prove a fundamental breach of the employment contract.
- The 'contract test' applies to constructive dismissal: the employer's conduct must be a significant breach going to the root of the contract.
- Where a contract of service provides for net salary rather than basic salary, no house allowance at 15% of basic pay is payable under Section 31 of the Employment Act.
Court orders
#- 1.Payment of arrear salary in the sum of Kshs.1,874,838.71 net of any deductions made.
- 2.The amount is payable with interest at Court rates from date of filing suit till payment in full.
- 3.Costs of the suit to the claimant.
- 4.The respondent to issue the claimant with a Certificate of Service within 30 days of the judgment.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aura v Transnile Enterprises Limited (Cause 280 of 2019) [2023] KEELRC 2640 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2640/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.