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ELRCDismissedELRC Cause (Nairobi) - Memorandum of Claim filed 22nd July 2014· [2019] KEELRC 292 (KLR)

Erick Ouma Aringo v Co-Operative Bank of Kenya Limited [2019] KEELRC 292 (KLR)

Employment and Labour Relations Court
22 November 2019
MOMaureen Onyango
5,840 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a lawful same-grade transfer is not constructive dismissal, and an employee who resigns voluntarily must prove the employer breached the contract.

What this practically means

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Executive summary

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The claimant, a Micro Credit Officer employed by the respondent bank in July 2008, was transferred by letter dated 3rd December 2013 from Kayole Branch to Kariobangi Branch to perform teller duties. He resigned by letter dated 26th February 2014 giving one month's notice, and thereafter sued claiming constructive/unfair dismissal, a discriminatory transfer and terminal dues totalling Kshs.4,716,433.30, with prayers for declarations, reinstatement or, in the alternative, monetary compensation and general damages. The respondent admitted the employment and transfer but maintained that the transfer was within the CBA and Staff Manual Transfer Policy, that both positions were in the same grade of Graduate Clerk, that the claimant was undergoing teller training (evidenced by lack of a User ID), and that he voluntarily resigned, collecting his retirement benefits of Kshs.517,077.67 against an outstanding loan. The court framed three issues: constructive dismissal, breach of contract, and entitlement to reliefs. Applying the constructive dismissal principles in the Coca Cola case and Rika J.'s formulation in Kenneth Kimani Mburu, the court found no repudiatory breach: the transfer was the bank's prerogative under the CBA and Transfer Policy, not a demotion, and the claimant's resignation letter expressed cordial relations and thanked the bank, contradicting claims of frustration. His delay of nearly three months in resigning and two months in filing suit was inconsistent with resignation in protest. The claim was dismissed with no orders for costs on 22nd November 2019.

Key legal issues

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01

Whether the claimant's resignation amounted to constructive dismissal

Holding

No constructive dismissal was proved; the claimant resigned voluntarily without alleging frustration, delayed in resigning and in filing suit, and no repudiatory breach by the employer was established

Reasoning

Applying the Coca Cola tests, the court found the employer's conduct - a transfer within the same grade under the CBA and Transfer Policy - involved no breach going to the root of the contract. The resignation letter thanked the bank and made no complaint of mistreatment. The claimant resigned just shy of three months after transfer and only filed suit two months after leaving, conduct inconsistent with an employee compelled to resign in protest.

p. 8
02

Whether the transfer and assignment of teller duties was a breach, demotion or discrimination

Holding

The transfer was lawful; Micro Credit Officer and Teller were in the same grade of Graduate Clerk, and the CBA and Transfer Policy gave the bank discretion to transfer, so neither breach nor discrimination was made out

Reasoning

The claimant conceded under cross-examination that no clause in the CBA required consultation before transfer and that both roles were clerical in the same grade. The two-weeks' notice in the Transfer Policy was subject to business exigencies. No evidence was tendered proving discrimination on any prohibited ground under section 5 of the Employment Act or Article 27 of the Constitution.

p. 8

Legal principles established

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  • Constructive dismissal requires an employer's repudiatory breach of a fundamental term of the contract, resignation in response to that breach without delay, and the burden of proof lies on the employee
  • Transfer of an employee within the same grade, in accordance with the contract, CBA and transfer policy, is a prerogative of the employer and does not constitute demotion or breach

Court orders

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  1. 1.The claim by the claimant is unmerited and is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment Actsection 10(5)
  • Employment Actsection 5(2), (3)(a), (3)(b), (7)
  • Employment Actsection 10(7)
  • Employment Actsection 28(1)(b)
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 49(1)(c)
  • Employment and Labour Relations Court Actsection 12
  • Constitution of Kenya, 2010Articles 41, 41(2)(a), (b), 259, 27

Cases cited (8)

  • Pretoria Society for the care of the Retarded vs. Loots
    (1997) 6 ELLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Kenneth Kimani Mburu & Another v Kibe Muigai Holdings Limited
    Nairobi ELRC Cause No. 339 of 2011
  • Henry Ochido -v- NGO Co-ordination Board
    [2015] eKLR
  • Western Excavating (ECC) Ltd v Sharp
    [1978] ICR 22
  • Premier Construction Limited –v- Josephat Bwire Lukala & 5 others
    [2017] eKLR
  • Robert Indiazi –v- Tembo Sacco Limited
    [2018] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution / Employment and Labour Relations Court Act (employment and labour relations dispute)

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, "Erick Ouma Aringo v Co-Operative Bank of Kenya Limited [2019] KEELRC 292 (KLR)", Case Analysis (2019). ELRC Cause (Nairobi) - Memorandum of Claim filed 22nd July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/292/eng@2019-11-22

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