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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1850 (KLR)

Charles Ndereva Ndwiga v Thika Cloth Mills Limited [2018] KEELRC 1850 (KLR)

Employment and Labour Relations Court
6 April 2018
NMNzioki wa Makau
2,946 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An injured Kenyan worker's resignation on medical grounds was not constructive dismissal, so the Employment Court dismissed all his claims.

What this practically means

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Executive summary

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The Claimant, employed as a machine attendant from February 2002, suffered a workplace injury on 30 April 2013 leaving his right forearm paralysed. He alleged the Respondent continued assigning him duties he could not perform, compelling him to resign on 30 September 2014, and claimed this amounted to constructive dismissal. He sought salary in lieu of notice, service pay for 15 years, 12 months' compensation for unfair termination, costs and interest. The Respondent denied the claim, asserting the Claimant was compensated under work injury benefits, had a separate suit in the Chief Magistrate's Court at Thika (Case No. 113 of 2015) for the injury, was assigned light duties as an office messenger, and resigned voluntarily on medical grounds with one month's notice per the collective bargaining agreement; it said all dues including October salary and leave were paid, and that service pay was unavailable as he was an NSSF contributor and received gratuity under the collective agreement. The Claimant testified and was cross-examined; the Respondent called two witnesses. Applying the constructive dismissal test from Rebecca Ann Maina and Ezekiel Okemwa, the court held the resignation letter showed the resignation was on medical grounds, with no complaint of intolerable employer-created conditions. Constructive dismissal was not established. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the Claimant's resignation amounted to constructive dismissal

Holding

The resignation was on medical grounds as clearly stated in the letter; no employer-created intolerable situation was established

Reasoning

The court examined the resignation letter which stated the Claimant was unable to perform assigned duties and wished to go home to be cared for by family. He did not request lighter duties or complain of menial or taxing tasks. Applying the tests in Rebecca Ann Maina and Ezekiel Okemwa, the court found no employer conduct rendering employment intolerable, so constructive dismissal was not made out.

p. 3
02

Entitlement to terminal dues and compensatory damages

Holding

Not entitled; dues were settled and the claim for compensation failed with the dismissal of the suit

Reasoning

The Respondent's evidence was that the Claimant was paid salary for October 2014, leave pro rata, issued a certificate of service, and received work injury compensation. The Claimant admitted receiving some payments. Having found no constructive dismissal, the claims for notice pay, service pay and 12 months' compensation all failed.

p. 3

Legal principles established

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  • For a resignation to amount to constructive dismissal there must be a situation at the workplace created by the employer rendering continuation of employment intolerable such that the employee has no option but to resign

Court orders

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  1. 1.The suit against the Respondent is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 45

Cases cited (5)

  • Joseph Aleper & Another v Lodwar Water and Sanitation Company Limited
    [2015] eKLR
  • Ezekiel Nyangoya Okemwa v Kenya Marine & Fisheries Research Institute
    [2016] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Benson M. Nyamai v Teachers Service Commission
    [2015] eKLR
  • Kenya Union of Commercial Food and Allied Workers v BS Mahindra & Co (K) Ltd
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (court's jurisdiction denied by Respondent but claim heard on the merits)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Ndereva Ndwiga v Thika Cloth Mills Limited [2018] KEELRC 1850 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1850/eng@2018-04-06

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