Peter Mutarura Mwaura v CIC Insurance Group Limited [2019] KEELRC 1029 (KLR)
The bottom line
#A Kenyan court ruled that being pressured to resign counts as dismissal, but the employee still lost because his employer followed fair procedure and had valid reasons.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant voluntarily resigned or was constructively dismissed
The claimant did not voluntarily resign but was constructively terminated, since the board had decided to terminate and merely gave him an option to resign
The court relied on Rose Mwikali Nzuki v Food for the Hungry Kenya, holding that a resignation prompted by the employer is not voluntary. The disciplinary minutes showed the board unanimously agreed to terminate the claimant's employment but, given his long service, offered him the opportunity to resign. He opted to resign which the board accepted and waived notice. The resignation was therefore a request from the respondent and amounted to constructive termination.
Whether the constructive termination followed due process and was for valid reasons
Due process was followed and there were valid reasons - the claimant was negligent in his duty as Managing Director and was given an opportunity to be heard
The court found that from the disciplinary minutes the respondent had a valid reason to consider termination, namely negligence of duty as Managing Director of CIC Asset Management Limited, having failed to ensure monthly reconciliations and having misled the board on exposure at Imperial Bank. The claimant was issued a show cause letter, responded, attended the disciplinary hearing and answered all allegations, satisfying Section 41 of the Employment Act 2007.
Remedies
No remedies awarded because although constructive termination was found, it was procedurally fair and for valid reasons
Having found due process was followed and valid reasons existed for the constructive termination, the court concluded there was no merit in the claimant's case for the reliefs sought, including one year's salary, notice pay, unpaid salary and general damages, and dismissed the claim with no order as to costs.
Legal principles established
#- A resignation is not voluntary if it is influenced or prompted by the employer
- Where a board decides to terminate but offers the employee an option to resign instead, the resignation is constructive termination
Court orders
#- 1.The claimant's case is dismissed with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mutarura Mwaura v CIC Insurance Group Limited [2019] KEELRC 1029 (KLR)", Case Analysis (2019). ELRC Cause (Memorandum of Claim dated 25/11/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1029/eng@2019-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.