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ELRCDismissedCause No 878 of 2017· [2023] KEELRC 300 (KLR)

Ayonga v Falcon Signs Limited (Cause 878 of 2017) [2023] KEELRC 300 (KLR)

Employment and Labour Relations Court
9 February 2023
BMB. O. M. Manani
1,370 words in judgment
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The bottom line

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A Kenyan court dismissed a driver's constructive dismissal claim, ruling his resignation was voluntary and the employee bears the burden of proving it was forced.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a heavy commercial vehicle driver since January 2010, resigned by notice dated October 5, 2015, effective November 8, 2015. He claimed he was forced to resign after the respondent allegedly declined to grant him permission to go for treatment for an eye complication developed around July 2015, and therefore contended that he was constructively dismissed and entitled to compensation for wrongful termination. The respondent denied liability, maintaining that the claimant voluntarily resigned and that his resignation was accepted, ending the contract of service. The court framed two issues: whether the contract was unfairly terminated, and whether the parties were entitled to the reliefs sought. It held that resignation validly terminates employment regardless of employer acceptance, but only if voluntary; a forced resignation is treated as constructive and unfair termination by the employer. The burden of proving that the employer forced the resignation lies on the employee. The court found no evidence that the claimant had applied for and been denied leave shortly before resigning, no medical evidence of the alleged severity of his condition presented to the employer, and noted that the resignation letter made no mention of any refusal. The claimant's submission that the resignation was temporary was rejected, the court holding that the law does not recognize temporary resignation. The claim was dismissed with costs to the respondent.

Key legal issues

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01

Whether the claimant's resignation was voluntary or forced, i.e. whether there was constructive dismissal

Holding

The resignation was voluntary; constructive dismissal was not established.

Reasoning

The claimant tendered a month's notice of resignation on October 5, 2015. His resignation letter cited his eye condition but did not mention any denial of leave or medical advice. There was no evidence he applied for leave to seek medication and was refused, nor medical evidence of the magnitude of the ailment. He thus failed to discharge the burden of proving that the respondent's conduct forced him to resign.

p. 3
02

Whether resignation can be temporary

Holding

The law does not recognize temporary resignation; the claimant's submission that he intended to resume work was rejected.

Reasoning

The claimant's advocates argued the resignation was temporary and he was to resume on November 8, 2015. The court held that a plain reading of the letter showed the claimant was to remain on duty up to that date, after which he would be out of employment. In any event, temporary resignation has no legal recognition.

p. 3

Legal principles established

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  • The validity of a resignation is not dependent on the employer accepting it.
  • For a resignation to lawfully terminate a contract it must be voluntary; a forced resignation amounts to constructive and unfair termination by the employer.
  • The burden of proving that the employer forced the resignation lies on the employee.
  • Constructive termination requires conduct by the employer amounting to a fundamental breach/implied repudiation of the contract.

Court orders

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  1. 1.The claim is dismissed with costs to the respondent.

Authorities

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Cases cited (2)

  • Herbert Wafula Waswa v Kenya Wildlife Services
    [2020] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Ayonga v Falcon Signs Limited (Cause 878 of 2017) [2023] KEELRC 300 (KLR)", Case Analysis (2023). Cause No 878 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/300/eng@2023-02-09

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