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ELRCDismissedCause No 866 of 2015· [2020] KEELRC 985 (KLR)

Charles Munyua v Marie Stopes Kenya [2020] KEELRC 985 (KLR)

Employment and Labour Relations Court
29 May 2020
MOMaureen Onyango
2,346 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 that an employee who resigned after a reasonable work transfer was not constructively dismissed and gets no compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1st March 1990 and confirmed on 27th December 1990, rose to the position of Clinic Manager. In early 2014 he requested early retirement, which the Respondent declined on 14th August 2014, citing its investment in his skills and its retirement policy of age 65. On 15th December 2014 the Respondent transferred him from Nanyuki to Malindi effective 12th January 2015, with a transfer allowance. His appeal against the transfer was dismissed, and he tendered his resignation effective 31st January 2015, which the Respondent accepted. The Claimant sued for Kshs.892,948.72 in admitted terminal dues, damages for unfair termination, and other reliefs, contending that the transfer was designed to frustrate him into forced early retirement, amounting to constructive dismissal, and relied on Section 49 of the Employment Act and authorities awarding 12 months' salary. The Respondent closed its case without calling witnesses and filed no submissions. The court framed two issues: whether the Claimant voluntarily retired or was constructively dismissed, and whether he was entitled to the remedies sought. Applying the principle that an employer's transfer prerogative must be exercised reasonably but is validly exercised with adequate notice and facilitation, the court found the transfer letter conferred adequate notice and a transfer allowance. None of the four ingredients of constructive dismissal - breach, fundamental repudiatory breach, resignation in response, and no delay - was established. The Claimant's early retirement letter thanked the Respondent for a rewarding career, evidencing no duress. Following Milton M Isanya v Aga Khan Hospital, the court found the Claimant resigned voluntarily, dismissed the claim with no orders as to costs, and delivered the judgment virtually under COVID-19 directions.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

The Claimant resigned voluntarily; the transfer was a lawful exercise of the employer's prerogative with adequate notice, and there was no evidence of frustration or duress.

Reasoning

The court held that an employer may transfer employees provided the prerogative is exercised reasonably. The transfer letter gave adequate notice and offered a transfer allowance. None of the four ingredients of constructive dismissal was established. The Claimant's early retirement letter thanked the Respondent for a rewarding career, showing no duress, and there was no evidence of an intolerable working environment.

p. 4
02

Whether the Claimant is entitled to terminal dues of Kshs.892,948.72 and remedies for unfair termination

Holding

Having voluntarily resigned, the Claimant is not entitled to the remedies sought; the claim was dismissed with no orders as to costs.

Reasoning

Since the court found no constructive dismissal, there was no unfair termination to compensate under Section 49 of the Employment Act. The Claimant admitted on cross-examination that he was paid his terminal dues at separation. The claim for Kshs.892,948.72 and damages therefore failed.

p. 4

Legal principles established

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  • An employer has the prerogative to transfer or deploy employees, but must exercise that prerogative reasonably and not arbitrarily.
  • Constructive dismissal requires a fundamental repudiatory breach of the employment contract to which the employee resigns in response without delay.

Court orders

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  1. 1.Dismissal of the Claimant's claim
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 49
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Nathan Ogada Atiagaga v David Engineering Limited
    (2015) eKLR; Cause No. 419 of 2014
  • George Odiyo Minyika v Chemilil Sugar Company Limited
    (2015) eKLR
  • Abisalom Ajusa Magomere v Kenya Nut Company Limited
    (2014) eKLR
  • Henry Ochido v NGO Co-ordination Board
    [2015] eKLR
  • Maria Kagai Ligaga v Coca Cola East and Central Africa Limited
    Cause Number 611 [N] of 2009 [unreported]
  • Milton M Isanya v Aga Khan Hospital
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Section 49 invoked)

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 Munyua v Marie Stopes Kenya [2020] KEELRC 985 (KLR)", Case Analysis (2020). Cause No 866 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/985/eng@2020-05-29

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