Deliberate failure to pay an employee salary leading to resignation amounts to unfair labour practice and subsequent resignation in such circumstance amounts to constructive dismissal.
Labor court judge Justice David Nderitu in his judgment dated January 25, 2024 said nonpayment of salary or wages as and when they fall due and payable subjects an employee to servitude, undue suffering, and indignity.
Constructive dismissal is a situation where the employee is forced to leave or quit his/her job not because they want to, but because of the employer’s conduct.
An employer who is unable to pay working employees, he said, shall take remedial measures at the earliest opportunity.
“Such an employer may negotiate on a mutually agreeable structure of offsetting such arrears or even declare the affected employees redundant under section 40 of the employment act,” ruled Nderitu.
Further, he ruled that the elementary duty and obligation of an employee is to supply labour and obey lawful orders from the employer and those placed in authority by the employer.
The employer has a duty and obligation to allocate work to the employee and pay the wages, salaries, and remuneration for the labour supplied as agreed as and when the same falls due and payable.
“It is also the duty of the employer to reduce an oral contract into writing.”
The judgment emanated from an application filed before a Nakuru Employment and Labour Court by Winfridah Kerubo Mokaya an employee of a nursery school , owned by Catholic Diocese of Nakuru and managed by Christ the King Parish.
Kerubo claimed that the employer forced her out of employment by neglecting to pay her three months’ salary which prompted her to issue a letter of resignation on July 30, 2015.
She also claimed, she was consistently underpaid, despite requests for review.
She alleged her resignation was due to intolerable working conditions and nonpayment of salary, constituting constructive dismissal.
The employer refuted Kerubo’s allegations of constructive dismissal, stating she resigned voluntarily in July 2015.
They argued financial difficulties led to unpaid salary for the three months, and despite offering a settlement cheque in July 2017, it was rejected.
The human resource manager testified that Kerubo, employed as a nursery school teacher, was not underpaid, with salary based on mutual agreement.
However, he acknowledged that nonpayment of salary could create a hostile environment, potentially constituting constructive dismissal.
Kerubo through her lawyer argued that she ought to have been paid in the category of a general worker as the Teachers Service Commission (TSC) was not employing nursery school teachers and did not provide for their registration.
According to Justice Nderitu, the scale of a general worker should apply where the minimum wage for a certain category is not specifically provided for.
“It is dangerous and exploitative to leave the forces of the market to determine the payable wages to such categories as the employees shall suffer from unreasonably low wages,” he ruled.
Furthermore, he said the pendulum is unfairly and undoubtedly tilted in favour of the employers due to the limited job opportunities.
“The government as a representative and agent of the sovereign has a duty and indeed an obligation to protect employees, and employers alike, whether in public or private sector from exploitation and unfavorable employment relations,” he ruled.
Email your news TIPS to Editor@Kahawatungu.com — this is our only official communication channel
