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ELRCDismissedCause No. 463 of 2017· [2020] KEELRC 1032 (KLR)

George Ogoma Ochieng v Kenjap Motors Limited [2020] KEELRC 1032 (KLR)

Employment and Labour Relations Court of Kenya
21 May 2020
MMM. Mbaru
1,532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee who resigned to escape disciplinary action cannot claim constructive dismissal, and his entire suit was dismissed with costs.

What this practically means

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Executive summary

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The claimant, employed as a machine operator and later earning Ksh.25,000 per month, sued the respondent claiming damages for unlawful (constructive) termination, notice pay, overtime pay of Ksh.187,200, and compensation for work during 32 public holidays (Ksh.26,656), plus costs. He alleged harassment and intimidation by management, a demotion from supervisor to general employee following a wage-increase request, and that he was forced to resign without notice or a chance to defend himself. The respondent denied the claims, asserting the claimant performed poorly, caused loss to a client, was retained despite misconduct, and voluntarily resigned without reasons or notice, after which his dues were paid and deductions made for company property and debts. Applying the doctrine of constructive dismissal as defined in Milton M Isanya v Aga Khan Hospital Kisumu and Maria Kagai Ligaga v Coca Cola East and Central Africa Ltd, the court held that constructive dismissal requires the employer's significant breach of the contract or intolerable working conditions. Here, the claimant had been notified of poor performance and directed to make good a client's loss; his instant resignation without reasons or notice was voluntary and designed to avoid answering to gross misconduct under section 44(4) of the Employment Act. The overtime claim failed as records showed payments made and lawful deductions under section 17; the public holiday claim failed because unchallenged evidence showed the respondent closed on public holidays, and claiming pay for days not worked would be unjust enrichment. The suit was dismissed with costs to the respondent.

Key legal issues

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01

Whether the claimant's resignation amounted to constructive dismissal

Holding

The resignation was voluntary and not constructive dismissal; it resulted from the claimant's effort to avoid answering to gross misconduct

Reasoning

The court adopted the definition of constructive dismissal as arising where the employer's conduct is a significant breach of the contract or working conditions are intolerable. The claimant had been issued notices of poor performance, had caused loss to a client's property, and was directed to make it good. Instead of addressing these issues, he tendered an instant resignation without reasons or notice. His neglect of duties on account of removal from a supervisor role amounted to gross misconduct under section 44(4) of the Employment Act.

p. 3
02

Whether the claimant was entitled to overtime and public holiday pay

Holding

The claims failed; overtime was partly paid and the deduction for unreturned company property was lawful, and the public holiday claim was unproven

Reasoning

The respondent's work records showed overtime payments made on 30th October 2017 and that the claimant owed the respondent for unreturned tools, with the deduction being lawful under section 17 of the Employment Act. On public holidays, the manager's unchallenged evidence that the respondent remained closed during public holidays stood, so claiming pay for days not worked would be unjust enrichment.

p. 3

Legal principles established

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  • Constructive dismissal occurs where the employer's conduct is a significant breach going to the root of the employment contract or renders working conditions intolerable
  • A claimant who resigns to evade pending disciplinary action cannot claim constructive dismissal
  • A claim for payment for days not worked amounts to unjust enrichment

Court orders

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  1. 1.Suit dismissed
  2. 2.Claimant to pay costs to the respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Ogoma Ochieng v Kenjap Motors Limited [2020] KEELRC 1032 (KLR)", Case Analysis (2020). Cause No. 463 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1032/eng@2020-05-21

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