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ELRCDismissed· [2020] KEELRC 1235 (KLR)

Veronica Wanjiru Rwinji v Benson Njiru Kiambo t/a Benser Financial Consultancy [2020] KEELRC 1235 (KLR)

Employment and Labour Relations Court
24 April 2020
NMNzioki wa Makau
2,299 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court threw out a constructive dismissal claim because the employee's grateful resignation letter and missing evidence undermined her story.

What this practically means

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Executive summary

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The Claimant sued her former employer of eight years, alleging that his conduct - an offensive text message telling her she was not wanted in his office, and alleged incitement of his spouse to confront her - made the workplace intolerable, forcing her to resign on 10th June 2017. She claimed constructive unfair dismissal and sought compensation for unfair dismissal, underpayments, overtime, unpaid leave, house allowance, service pay and terminal benefits totalling about Kshs. 1.5 million. The Respondent denied the allegations, contending the Claimant resigned voluntarily, that she was paid all her dues, and that the constructive dismissal claim was an afterthought built on a third party (his wife) who was not joined to the suit. Both parties testified. The Claimant relied on authorities on breach of the implied term of trust and confidence, including disclosure of her health status to her father; the Respondent relied on Section 47(5) of the Employment Act on burden of proof and authorities holding that a grateful resignation letter is inconsistent with forced exit. The court, defining constructive dismissal as termination arising from intolerable working conditions, found that although the ingredients were pleaded, the Claimant did not avail the offending SMS or her father's account of meetings with the Respondent's wife, and that her grateful resignation letter was not the tone of a frustrated employee. The claim was held unproved and the suit was dismissed, with each party bearing their own costs. The decision was rendered online under COVID-19 practice directions waiving Order 21 Rules 1 and 3 of the Civil Procedure Rules.

Key legal issues

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01

Constructive dismissal

Holding

The Claimant failed to prove constructive dismissal

Reasoning

The court accepted the definition of constructive dismissal as termination brought about by intolerable working conditions. Although the ingredients were asserted in the pleadings, including the offending SMS, the Claimant did not avail the SMS evidence or a statement from her father about the meetings with the Respondent's wife. Her grateful resignation letter was inconsistent with a frustrated employee. The claim was therefore unproved and dismissed.

p. 3
02

Burden of proof in unfair termination

Holding

The burden of proving unfair termination or wrongful dismissal rests on the employee, and the Claimant did not discharge it

Reasoning

Applying Section 47(5) of the Employment Act as urged by the Respondent, the court found the claim unproved. The employee's own documentary and oral evidence - the gratitude expressed in the resignation letter and the absence of corroborative evidence of the hostile environment - meant the alleged breaches were unsubstantiated to warrant a finding of constructive dismissal.

p. 3
03

Voluntary resignation

Holding

The court found the resignation was not shown to be a response to a breach entitling the Claimant to treat the contract as repudiated

Reasoning

The Claimant conceded she wrote the resignation letter thanking the employer, she did not join the Respondent's wife despite blaming her, and she produced no SMS or father's affidavit. The court was unable to find that her resignation was a lawful response to a breach of the implied term of trust and confidence.

p. 3

Legal principles established

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  • Constructive dismissal arises where the employer creates such a hostile environment at the workplace that the employee has no option but to resign
  • A resignation letter thanking the employer is not the tone of an employee forced out of employment by frustration

Court orders

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  1. 1.Suit is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Civil Procedure RulesOrder 21 Rule 1 and 3

Cases cited (11)

  • Malik v BCCI
    [1997] 3 All ER 1
  • Fifth Accountants Ltd v Law
    UKEAT/0460/13/SM
  • Western Excavating (ECC) Ltd v Sharp
    [1978] 1 All ER 713
  • Kingston Upon Hull City Council v Dunnachie
    UKEAT Appeal No. 0706/02RN
  • Milton Misanya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • Kenneth Kimani Mburu & Another v Kibe Mungai Holdings Limited
    [2014] eKLR
  • John Mulinge Mutuku v Kartasi Industries Limited
    [2019] eKLR
  • Coca Cola East Africa & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Reuben Lucheleli Shikuri v Eldoret Packers Ltd
    [2015] eKLR
  • Moses Mulupi Wamalwa v Bake N Bite
    [2016] eKLR
  • Cheruiyot Kipkemoi v Tirgaga Tea Factory
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction over unfair termination claims (Employment Act, Section 47(5) applied on burden of proof)

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, "Veronica Wanjiru Rwinji v Benson Njiru Kiambo t/a Benser Financial Consultancy [2020] KEELRC 1235 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1235/eng@2020-04-24

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