Arodi v Kobian (Kenya) Limited (Cause 987 of 2018) [2024] KEELRC 809 (KLR)

The resignation letter gave no reason and the Claimant admitted this. He tendered no evidence of the alleged frustration, withheld salary, its duration or amount, and made no complaint at the time. Without particulars of the repudiatory breach and a causal link between the employer's conduct and the resignation, constructive dismissal cannot be established.

The Claimant admitted writing the 27th February 2017 letter acknowledging payroll errors and proposing to forgo five months' salary, though he contradicted himself. He never challenged the signature or alleged forgery. On a balance of probabilities the salary reduction was consensual, a tacit admission of guilt, not an unlawful withholding.

All increments were approved by Charan Patel, the supervisor, who admitted failing to verify the payroll. There was no documented salary policy and the Claimant's increments were mostly below average. Having accepted the Claimant's proposal to forgo salary for five months, the Respondent was estopped from claiming any balance without evidence of an agreement.

Service pay is a statutory right under Section 35(5) of the Employment Act, 2007 but Section 35(6)(d) disqualifies NSSF members. The Claimant's payslips showed NSSF membership, so the submission that service pay was implied in his contract was unsustainable both factually and legally.