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ELRCDismissedCause No 2071 of 2015· [2020] KEELRC 1280 (KLR)

Mark Kimitai Suge v Unilever Kenya Limited [2020] KEELRC 1280 (KLR)

Employment and Labour Relations Court
16 April 2020
2,643 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a negotiated exit package an employee agreed to cannot later be rebranded as constructive dismissal.

What this practically means

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Executive summary

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The claimant sued the respondent seeking terminal benefits of Kshs. 12,441,945.75 and a declaration that his termination amounted to constructive dismissal, alleging he was coerced, intimidated and threatened into resigning in September 2013 after an orchestrated plan to replace him with expatriate managers, and claiming he had served the respondent group for thirteen years. The respondent denied the claim, asserting the claimant was employed by it only from August 2011 (previously serving Unilever Tea Kenya Limited, a distinct legal entity), that his performance in the June 2013 review was unsatisfactory, and that following performance discussions he himself proposed early retirement, leading to negotiated meetings, letters and emails culminating in an agreed resignation on 30 September 2013 with an exit package of Kshs. 5,451,893 gross. The court framed two issues: whether the claimant made out constructive dismissal, and whether he was entitled to the reliefs sought. Applying the ingredients of constructive dismissal, the court found the claimant served the respondent for only three years, that the exit resulted from a consultative process with time to reflect on offers and counter-offers, and that the termination and package were reached by consensus. No fundamental or repudiatory breach was established; the claimant's demand for an enhanced package was an afterthought. The suit was dismissed, and given the long relationship and admitted service to the group, each party was ordered to bear their own costs. The judgment was delivered online pursuant to COVID-19 directions.

Key legal issues

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01

Whether the claimant's resignation amounted to constructive dismissal

Holding

No. The exit resulted from a consultative, mutually agreed separation process, not a fundamental breach.

Reasoning

The court reviewed the claimant's testimony against RW1's evidence and found that after a performance review the claimant himself proposed early retirement. Series of meetings, letters and emails culminated in an agreed exit package in the letter dated 30 September 2013. The claimant was given time and opportunity to reflect on offers and counter-offers, and the termination and package were reached by consensus. Feelings of being unwanted do not establish repudiatory breach.

p. 4
02

Length of service relied on by the claimant

Holding

The claimant served the respondent for three years, not thirteen; prior service was with a distinct legal entity (Unilever Tea Kenya Limited).

Reasoning

RW1 produced the letter of appointment dated 12 May 2011 and testified that the claimant's earlier employment was with Unilever Tea Kenya Limited, a separate and distinct legal entity from the respondent. The court accepted this, undermining the claimant's claim to terminal benefits computed on thirteen years of service.

p. 3
03

Whether the claimant was entitled to an enhanced severance package

Holding

No. The agreed exit package had been implemented and the claimant's claim was an afterthought.

Reasoning

The court found the claimant had accepted a negotiated package of Kshs. 5,451,893 gross including ex-gratia pay, notice-related earnings, leave pay, relocation allowance and pension benefits. His later demand for Kshs. 12,441,945.75 as severance for forced redundancy was an afterthought and the suit for enhanced compensation failed.

p. 4

Legal principles established

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  • The essential ingredients of constructive dismissal are employer breach of contract, fundamental/repudiatory breach, resignation in response to that breach, and no delay in resigning (otherwise breach may be waived).

Court orders

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  1. 1.Suit dismissed as it lacks merit; claimant not entitled to the reliefs sought.
  2. 2.Each party to bear their own costs of the suit.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • Milton M. Isinya vs Aga Khan Hospital Kisumu
    (2013) eKLR
  • Robs Indiazi vs Tembo Sacco Limited
    (2018) eKLR
  • Maria Kagai Ligaga vs Coca Cola East and Central Africa Limited
    Cause number 611(N) of 2009
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction (Employment and Labour Relations Court Act)

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, "Mark Kimitai Suge v Unilever Kenya Limited [2020] KEELRC 1280 (KLR)", Case Analysis (2020). Cause No 2071 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1280/eng@2020-04-16

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