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ELRCDismissedELRC Cause (Memorandum of Claim dated 13th April 2022)· [2024] KEELRC 977 (KLR)

Saro v Evans Sunrise Centre (Employment and Labour Relations Cause E010 of 2022) [2024] KEELRC 977 (KLR)

Employment and Labour Relations Court
2 May 2024
HWHellen Wasilwa
5,392 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that quitting for a new job is not constructive dismissal, even where the employer had paid salaries late.

What this practically means

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Executive summary

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The claimant, a Resident Medical Officer employed by the Respondent on 11th January 2021 on a two-year renewable contract at Kshs 130,000 per month, alleged constructive dismissal arising from non-payment of his salary for September and October 2021, prompting his resignation by letter of 10th October 2021 effective 31st October 2021. He sought a declaration of constructive/wrongful dismissal, Kshs 2,025,833 in damages (12 months' salary, pro-rated leave, notice pay and arrears), interest and costs. The Respondent attributed delayed salaries to Covid-19-induced cash-flow problems, alleged staff had accepted a modified payroll cycle, asserted the claimant resigned because he had secured a better job with Taita Taveta County Public Service, and counterclaimed for one month's salary in lieu of unserved notice plus damages for disruption. Justice Hellen Wasilwa framed three issues: constructive dismissal, its fairness if established, and remedies. She found that although the Respondent did delay salaries, the delay alone could not ground constructive dismissal, particularly as all staff were paid late and salaries were ultimately paid. The claimant admitted receiving another job at Taita Taveta County commencing 12th November 2021, which the court held was the real reason for his resignation. The claim was dismissed in its entirety. On the counterclaim, the claimant's admission that he served only part of the contractual notice period yielded an award to the Respondent of Kshs 88,100 (21/30 of one month's salary) with interest from judgment. There was no order of costs. Judgment was delivered virtually on 2nd May 2024.

Key legal issues

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01

Whether failure to pay salary timeously amounts to constructive dismissal

Holding

No - delay in payment, where salaries are eventually paid and delays were explained by circumstances, does not amount to constructive dismissal

Reasoning

The court accepted that the Respondent did delay salary payments, but held that the delay alone was insufficient. The claimant admitted all staff were paid late and that he continued working for months. The court found the real reason for resignation was the claimant's new employment at Taita Taveta County, breaking the causal link required for constructive dismissal.

p. 10
02

Whether the claimant served the contractual notice period

Holding

No - he gave notice of 10th to 31st October 2021, 21 days short of the contractual one month, entitling the Respondent to a proportionate payment

Reasoning

The court accepted the claimant's admission that he did not serve the full contractual notice period. The contract provided one month's notice. The shortfall was 21 days, and the court quantified damages at 21/30 x 130,000 = 88,100/= with interest from judgment.

p. 10
03

Entitlement to remedies for unfair/constructive dismissal

Holding

The claimant was not constructively dismissed and therefore not entitled to the remedies sought; instead the Respondent's counterclaim succeeded in part

Reasoning

Having found no constructive dismissal, the court dismissed the claim for compensation, salary arrears and leave pay. The claimant's own admission that he received and accepted another job undermined the claim of frustration. The counterclaim on notice pay succeeded only to the extent of the unserved 21 days.

p. 10

Legal principles established

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  • Late payment of salary alone, where salaries are eventually paid in full and all staff are treated similarly, does not by itself establish constructive dismissal
  • An employee who resigns to take up another employment offer, with knowledge of the appointment, cannot claim constructive dismissal
  • An employee who fails to serve the full contractual notice period is liable to pay the Respondent a proportionate salary in lieu of the unserved notice

Court orders

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  1. 1.The claimant's claim for constructive and wrongful termination is dismissed
  2. 2.Award to the Respondent on the Counterclaim of Kshs 88,100/= (21/30 x 130,000) for unserved notice period
  3. 3.Interest on the awarded amount at court rates with effect from the date of the judgment
  4. 4.No order of costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Saro v Evans Sunrise Centre (Employment and Labour Relations Cause E010 of 2022) [2024] KEELRC 977 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated 13th April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/977/eng@2024-05-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.