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ELRCPartially AllowedMemorandum of Claim filed 29th April 2013· [2016] KEELRC 1365 (KLR)

Samuel Mbugua Kang’ethe v University Council Inoorero University [2016] KEELRC 1365 (KLR)

Employment and Labour Relations Court
1 April 2016
ANAbuodha J. N.
2,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A university professor who claimed he was forced to resign lost his constructive dismissal claim but still received his admitted gratuity of Kshs.202,500.

What this practically means

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Executive summary

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The claimant, former Deputy Vice Chancellor (Academic, Research and Student Affairs) of the respondent university, alleged that his resignation of 15th October 2012 was procured by threats, intimidation and fabricated accusations, amounting to constructive dismissal. He sought six months' salary in lieu of notice, terminal benefits for three years and unpaid leave for 66 days. The respondent denied coercion, asserting the resignation was voluntary and that the claimant had failed to handle the sensitive transfer of LLB students to Mt. Kenya University. The respondent admitted liability for terminal benefits but contended these accrued only upon completion of the contract. The respondent did not call witnesses. The Court, applying the Supreme Court of Canada decision in David Potter v. New Brunswick Legal Aid Commission and the principle in Turner v. Anheuser-Busch relied on by the respondent, held that the burden of proving constructive dismissal lies with the employee and that working conditions must be so intolerable that a reasonable person would be compelled to resign. The Court found the claimant had not discharged that burden: the transfer task fell within his responsibilities, there was no evidence of coercion, and no evidence linking alleged financial woes to the resignation. However, the Court awarded the claimant Kshs.202,500/= being 15% gratuity for each complete year of service, as admitted by the respondent. Each party was ordered to bear its own costs, the claimant having been partially successful. Judgment delivered at Nairobi on 1st April 2016 by Abuodha J.

Key legal issues

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01

Whether the claimant was constructively dismissed

Holding

The claim was not proved; the claimant resigned voluntarily and the respondent committed no breach justifying constructive dismissal

Reasoning

The Court applied the principle that the burden of proving constructive dismissal rests on the employee. The claimant did not produce evidence connecting the respondent's alleged financial difficulties to his resignation, and the resignation letter was not produced. The failure to execute the LLB student transfer fell within his responsibilities, and no coercion or threat was proved; nothing prevented him from refusing to resign, being dismissed, and then suing.

p. 4

Legal principles established

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  • The burden of proof in claims for constructive dismissal rests with the employee
  • Constructive dismissal requires working conditions so intolerable that a reasonable person in the employee's position would be compelled to resign

Court orders

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  1. 1.The respondent to pay the claimant the sum of Kshs.202,500/= being 15% gratuity for each complete year of service
  2. 2.Each party to bear their own costs

Authorities

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Cases cited (2)

  • Turner v. Anheusel - Busch
  • David Potter v. New Brunswick Legal Aid Commission
Jurisdiction invoked
Original jurisdiction over employment and labour relations 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, "Samuel Mbugua Kang’ethe v University Council Inoorero University [2016] KEELRC 1365 (KLR)", Case Analysis (2016). Memorandum of Claim filed 29th April 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1365/eng@2016-04-01

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