Constructive Dismissal in Kenya is a critical issue in employment law, both for employees and employers in Kenya. This concept revolves around situations where an employee resigns due to an employer’s conduct that fundamentally breaches the terms of their employment contract.
Understanding constructive dismissal is essential for navigating the complexities of employment disputes and ensuring fair practices in the workplace. This article explores the nuances of constructive dismissal in Kenya, supported by relevant case law, and provides practical insights for both parties involved.
What is Constructive Dismissal?
Constructive dismissal occurs when an employee resigns because of the employer's actions or failures that make their working conditions untenable. In essence, it is a form of indirect termination of employment, where the employee's resignation is seen as a response to the employer's breach of contract.
Legal Definition and Requirements
In Kenya, constructive dismissal is governed by the Employment Act, 2007. According to the Act, constructive dismissal occurs when:
Breach of Contract: The employer's actions or omissions amount to a significant breach of the employment contract. This could include changes in job duties without consent, reduction in salary, or failure to provide a safe working environment.
Employee Resignation: The employee resigns due to the breach. Simply resigning is not enough; the resignation must be directly linked to the breach.
Notice and Opportunity: The employee should ideally give the employer an opportunity to rectify the breach before resigning. This demonstrates that the resignation was a last resort.
Key Case Law in Kenya
Several landmark cases have shaped the understanding of constructive dismissal in Kenya. Here are a few notable examples:
Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR: This 2015 Court of Appeal case is one of the most authoritative decisions on constructive dismissal in Kenya. The court affirmed that the defining feature of constructive dismissal is the employer’s conduct forcing the employee to resign.
Nathan Ogada Atiagaga v David Engineering Limited [2015] eKLR: Justice Mbaru of the Employment and Labour Relations Court stated that constructive dismissal occurs when an employee resigns because the employer’s behavior has made life so difficult that the employee has no choice but to resign.
Milton M Isanya v Aga Khan Hospital Kisumu [2017] eKLR: Justice Maureen Onyango ruled that constructive dismissal occurs when the employer frustrates the employee to the extent that resignation is the only option.
Charles Munyua v Marie Stopes Kenya [2020] eKLR: In this case, the employee claimed constructive dismissal after being transferred from Nanyuki to Malindi. The court held that the resignation was voluntary and dismissed the claim.
Herbert Wafula Waswa v Kenya Wildlife Services [2020] eKLR: The Court found that the employee’s resignation following suspension did not constitute constructive dismissal, as it appeared to be an attempt to avoid disciplinary action.
Rotich v Kenya Women Microfinance Bank PLC [2024] eKLR: The Court held that the Respondent’s action of transferring the Claimant while on maternity leave, coupled with withdrawal of her telephone allowance and car allowance amounted to a repudiatory breach of her employment contract, forcing her to resign.
Otieno v Mutsimoto Motor Company Limited [2024] eKLR: The Petitioner claimed constructive dismissal, asserting that he was coerced into signing a resignation letter on the day he returned to work after a prolonged sick leave due to a highly infectious disease. The court determined that the Respondent had constructively discharged the Petitioner by unduly pressuring him to resign, promising that it was in the best interest of his colleagues and that he could apply for his job again once he fully recovered.
Proving Constructive Dismissal
To successfully claim constructive dismissal, an employee must demonstrate:
Intolerable Conditions: Evidence of a hostile work environment created by the employer.
Breach of Contract: Proof that the employer breached a fundamental term of the employment contract.
Resignation: The employee must have resigned in response to the employer’s conduct.
Causal Link: A direct connection between the employer’s actions and the resignation.
Practical Steps for Employees
If you believe you have been constructively dismissed, consider the following steps:
Document the Breach: Keep detailed records of the employer's actions or inactions that have led to the breach of your employment contract.
Raise the Issue: Communicate your concerns formally to your employer, giving them an opportunity to rectify the situation. This could be through a grievance letter or internal complaint process.
Seek Legal Advice: Consult with an employment lawyer to understand your rights and the viability of your constructive dismissal claim.
Resignation: If the breach is not addressed and you choose to resign, ensure that your resignation letter clearly states that it is due to constructive dismissal.
File a Claim: You may file a claim with the Employment and Labour Relations Court if negotiations with your employer do not lead to a satisfactory resolution.
Practical Steps for Employers
For employers, preventing constructive dismissal claims involves:
Clear Contracts: Ensure employment contracts are clear, comprehensive, and understood by both parties.
Address Grievances: Implement a robust grievance mechanism to address employee concerns before they escalate.
Fair Treatment: Avoid unilateral changes to job roles, salary, or working conditions without employee consent.
Compliance: Adhere to all statutory requirements related to working conditions, safety, and employee rights.
Legal Advice: Seek legal advice when making significant changes to employment terms or when facing potential disputes.
Conclusion
Constructive dismissal is a serious matter that can have significant legal and financial implications for both employees and employers in Kenya. By understanding the legal framework, key case law, and practical steps to take, both parties can better navigate employment disputes and ensure fair practices in the workplace.
If you find yourself facing issues related to constructive dismissal, seeking professional legal advice is crucial to protecting your rights and interests.
If you need expert legal advice on constructive dismissal or other employment-related matters, contact our experienced team of employment lawyers today. We provide tailored legal solutions to help you navigate complex employment issues with confidence.
