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ELRCDismissedNot stated in the judgment· [2019] KEELRC 2055 (KLR)

Patricia Wangui v Standard Chartered Bank [2019] KEELRC 2055 (KLR)

Employment and Labour Relations Court
8 March 2019
3,747 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled the bank employee resigned voluntarily, not constructively dismissed, because she waited too long and couldn't prove intolerable treatment.

What this practically means

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Executive summary

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The claimant, employed by the respondent bank from 1st February 2006 as an Administrative Assistant, alleged that she was constructively terminated through arbitrary redeployment to clerical roles, an adverse performance rating of 4B, unfair disciplinary proceedings during ill health (including pregnancy-related complications and a miscarriage), and a hostile work environment. She sought terminal dues, maximum compensation of Kshs. 10,000,000 for constructive termination and discrimination, and costs. The respondent denied constructive termination, contending that the claimant resigned voluntarily on 1st November 2011, that her performance was genuinely deficient, and that she received support, sick leave and only a verbal warning. Both parties cited Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga on constructive dismissal. The court framed three issues: whether the resignation was voluntary or constructive; whether any constructive termination was unfair; and whether reliefs should issue. Applying the test of repudiatory breach or intolerable working environment, the court found the claimant had not proved she was forced to resign: she accepted her redeployment by signing, worked on for about two years after the 2009 redeployment, and was accorded appraisals, a performance improvement plan, sick leave and welfare support. The court held she resigned voluntarily and declined to determine the unfair termination issue. All reliefs were refused: compensation does not arise without unfair termination; overtime and CBA benefits were unavailable to her as a non-unionised management employee; and anticipatory pension was untenable in law. The suit was dismissed with no costs.

Key legal issues

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01

Whether the claimant's resignation was voluntary or amounted to constructive termination

Holding

The claimant failed to prove repudiatory breach or intolerable working environment; she resigned voluntarily.

Reasoning

The claimant was appraised per HR policy and placed on a performance improvement plan; she was given sick leave and welfare support. Despite poor performance and misconduct, she received only a verbal warning and continued working for over a year before resigning. She also accepted the 2009 redeployment and job descriptions by signing, and a two-year delay before resigning was inconsistent with intolerable conduct.

p. 4
02

Whether the termination, if constructive, was unfair and unlawful

Holding

The court declined to determine this issue as it was premised on a finding of constructive termination which failed.

Reasoning

Having found the resignation voluntary, the court held there was no need to answer whether the termination was unfair and unlawful, since the finding on the first issue was dispositive.

p. 4
03

Whether the reliefs sought (compensation, overtime/CBA benefits, anticipatory pension) should be granted

Holding

All reliefs refused: compensation does not arise absent unfair termination; overtime/CBA benefits unavailable to a non-unionised management employee; anticipatory pension not tenable in law.

Reasoning

Compensation presupposes unfair termination, which was not established. The claimant admitted holding a management position and not being a union member, excluding CBA benefits like overtime. Anticipatory pension was untenable in law and inconsistent with a voluntary resignation, the claimant having secured other employment afterwards.

p. 4

Legal principles established

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  • Constructive termination occurs where the employer, by conduct, commits a repudiatory breach of the employment contract or creates a hostile working environment that makes it impossible for the employee to continue working, forcing the employee to resign.
  • Employer conduct alleged to amount to constructive dismissal cannot be conduct the employee tolerated for an unreasonably long period before resigning.

Court orders

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  1. 1.Dismissal of the suit with no costs

Authorities

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Cases cited (7)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Henry Ochido v NGO Coordination Board
    [2015] eKLR
  • Western Excavating (ECC) Ltd v Sharp
    [1978] ICR 222 or [1978] QB 761
  • Milton M Isinya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • John Muia Mbute & another v Rakim Rajan t/a Smokey’s Bar & Restaurant
    [2016] eKLR
  • Benard Mutunga Kiio & Charles Mutuku Mbatha v Kenya Aerotech Limited
    [2015] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (claim instituted by Memorandum of Claim); no specific constitutional or statutory provision cited in the judgment

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, "Patricia Wangui v Standard Chartered Bank [2019] KEELRC 2055 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2055/eng@2019-03-08

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