Christina Sigowa Wadulo v Solimpexs Africa Limited [2016] KEELRC 1394 (KLR)
The bottom line
#A Kenyan court ruled a 'voluntary' resignation forced, awarding a probationary CEO six months' salary plus dues totalling over Kshs. 6 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was still on probation as at 30 November 2012
Yes - the initial three-month probation ending 30.9.2012 extended automatically to 31.12.2012 because the Respondent never confirmed her employment in writing, consistent with Section 42(2) of the Employment Act
The court read clause 2 of the appointment letter literally: confirmation had to be in writing before or on completion of the first probation period. Absent written confirmation, probation extended automatically for a further three months. The court found this consistent with Section 42(2) of the Employment Act 2007, which caps a probationary period at six months with an extension of up to six months with the employee's agreement. The Claimant resigned on 30.11.2012, within the extended probation.
Whether the resignation was voluntary or forced
The resignation was forced, amounting to constructive/unlawful termination despite the Claimant being on probation
The resignation letter itself referenced discussions and an amicable agreement reached at a meeting with the Board Chairman, showing the resignation did not emanate from the Claimant's free will. Applying the two-branch constructive dismissal test from the Supreme Court of Canada in Potter v New Brunswick Legal Aid Services Commission, the court held that an employer's conduct showing an intention not to be bound by the contract can constitute constructive dismissal. The Claimant's demand for pay in lieu of notice further indicated she was terminated rather than resigning spontaneously.
What remedies the Claimant was entitled to
Notice pay, accrued salary, utility reimbursements, prorated leave, travel and relocation costs, a Certificate of Service, and six months' salary as compensation for unlawful dismissal
Having found a forced resignation amounting to unlawful termination, the court awarded contractual dues (notice pay, October and November salary, utility bills, prorated leave, air ticket and relocation expenses) and exercised discretion to award six months' salary as compensation for unlawful dismissal, less amounts already paid and statutory deductions. A Certificate of Service was also ordered.
Legal principles established
#- Where an employer does not confirm an employee in writing before completion of the initial probation period, the probation extends automatically per the contract, subject to the statutory six-month cap
- An employer's conduct can convert an apparent resignation into a constructive/forced dismissal where the resignation flows from a discussion showing no free will on the employee's part
Court orders
#- 1.Award of 1 month's salary in lieu of notice of Kshs. 750,000
- 2.Award of salary balance for October 2012 of Kshs. 238,175
- 3.Award of salary for November 2012 of Kshs. 750,000
- 4.Award of electricity and water bills for October to November 2012 of Kshs. 14,295
- 5.Award of one way ticket for self and spouse of Kshs. 39,600
- 6.Award of leave on prorate basis for 8.75 days of Kshs. 298,295
- 7.Award of relocation expenses to Kampala of Kshs. 195,500
- 8.Issuance of a Certificate of Service
- 9.Award of 6 months' salary for unlawful dismissal of Kshs. 4,500,000
- 10.Total due of Kshs. 6,785,865 less statutory deductions, plus costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (fair hearing/unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christina Sigowa Wadulo v Solimpexs Africa Limited [2016] KEELRC 1394 (KLR)", Case Analysis (2016). Cause No. 232 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1394/eng@2016-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.