Waweru v Triple Edge Media Limited (Cause E835 of 2021) [2024] KEELRC 569 (KLR)
The bottom line
#A Kenyan court refused to find constructive dismissal where an employee delayed complaining about unpaid wages, but still awarded the admitted salary arrears.
What this practically means
#Executive summary
#Key legal issues
#Whether refusal to sign a Service Level Agreement amounted to constructive dismissal
No - a subsisting contract on similar terms existed by conduct, and alteration of terms had to be mutual; the Respondent was merely expressing its view on a new proposal.
The fixed-term contract lapsed by effluxion of time but the Claimant continued working and being paid, evidencing consensus ad idem and renewal on similar terms. Since terms were mutually agreed through conduct, the Respondent was free to decline a new proposal without committing unfair labour practice or constructive dismissal.
Whether non-payment of salary arrears constituted constructive dismissal
Non-payment is a repudiatory breach running to the root of the contract, but the Claimant waived/acquiesced in the breach over 2017-2020 and is estopped from alleging constructive dismissal.
Non-payment of wages qualifies as repudiatory breach, but courts must interrogate the employee's conduct for waiver, acquiescence or delay. The breach started in 2017, persisted in 2018 and recurred in 2020; by 2020 the Claimant was accustomed to it and acquiesced. He also never indicated when he resigned in response to the breach.
Entitlement to terminal dues in an undefended claim
Only salary arrears of Kshs.561,644.80 proved and awarded; notice pay, leave and service pay claims failed for want of evidence, and service pay was barred by the contributory pension scheme.
An undefended claim still requires the claimant to prove entitlement. The Respondent admitted arrears by email dated 26th August 2020, so those were awarded as prayed. No evidence supported notice pay or leave; service pay was disentitled under Section 35(6)(c) of the Employment Act because of the contributory pension scheme and no proof NSSF was not remitted.
Legal principles established
#- An agreement need not be in writing; it may be oral, written or implied from the conduct of the parties, and a fixed-term contract renewable by mutual consent may be renewed by conduct.
- A party serving under mutually agreed terms cannot unilaterally alter them; an employer's refusal of an employee's new proposal is not constructive dismissal where a subsisting contractual relationship exists.
- Failure by an employer to pay wages as and when earned is a repudiatory breach entitling the employee to treat himself as discharged, but the employee must not waive, acquiesce or delay.
- A claimant in an undefended suit still bears the burden of proof on a preponderance of probabilities.
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent for salary arrears of Kshs.561,644.80.
- 2.Costs of the suit awarded to the Claimant.
- 3.Interest at court rates from the date of judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Triple Edge Media Limited (Cause E835 of 2021) [2024] KEELRC 569 (KLR)", Case Analysis (2024). Cause No E835 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/569/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.