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ELRCPartially AllowedAppeal No E041 of 2021· [2023] KEELRC 586 (KLR)

Atianyi v Aga Khan Education Service (Appeal E041 of 2021) [2023] KEELRC 586 (KLR)

Employment and Labour Relations Court
3 March 2023
1,466 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 resigns cannot claim unfair termination compensation, though his final payout was adjusted upward.

What this practically means

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Executive summary

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The Appellant, employed by the Respondent as a Laboratory Technician at Aga Khan High School, Nairobi from February 12, 2001, resigned by letter dated July 26, 2018 effective August 24, 2018. He sued at the Trial Court claiming constructive dismissal and seeking gratuity, house allowance, safety attire allowance, long-service award, August 2018 salary and 12 months' salary for unfavourable working conditions. The Trial Court awarded him Kshs 102,422 but allowed the Respondent's counterclaim of Kshs 52,692 (2 months' notice pay), yielding a net decretal sum of Kshs 46,730, with no order on costs. On appeal, the court considered whether there was constructive dismissal, unfair termination, and whether the Trial Court erred on house allowance, August 2018 salary and the counterclaim. Guided by the Court of Appeal decision in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, the court held there was no constructive dismissal: the resignation letter was cordial, no repudiation was shown, and acts occurring after resignation could not constitute a hostile working environment. Unfair termination presupposes employer-initiated termination; having resigned, the Appellant could not claim its remedies. The house allowance claim was barred by his signed discharge of June 5, 2017 after payment of Kshs 70,000 arrears. However, the court found error in the counterclaim award: only 1 month's notice pay (Kshs 27,663) was due, an error the Respondent conceded. The appeal was partly allowed, the counterclaim corrected to 1 month's notice pay, the net sum adjusted to Kshs 74,759, with no order on the costs of the appeal.

Key legal issues

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01

Constructive dismissal

Holding

There was no constructive dismissal; the resignation was voluntary and no repudiation by the employer was shown

Reasoning

The resignation letter was cordial and mentioned no hostility. The grievances pleaded, including acts occurring after resignation (lock-outs, relocation complaints), could not amount to a hostile working environment. The underpayment complaint had no supporting prayer. The Trial Court correctly applied the constructive dismissal principles, guided by the Court of Appeal decision in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga.

p. 3
02

Unfair termination

Holding

Unfair termination applies only where termination is at the instance of the employer; a resigning employee cannot claim its remedies

Reasoning

Sections 41, 43, 45 and 47(5) of the Employment Act, 2007 govern unfair termination, with remedies under Section 49 and Section 12 of the ELRC Act. Since the Appellant resigned, the Respondent bore no obligation to justify termination on valid and fair grounds, and no claim for 12 months' compensation could lie.

p. 3
03

House allowance claim

Holding

The claim for arrears of house allowance was properly declined

Reasoning

A letter of May 31, 2017 undertook payment of Kshs 70,000 as arrears of Kshs 5,000 for 14 months, and the Appellant signed a discharge on June 5, 2017 releasing further claims. He also confirmed he was housed by the Respondent from 2010, as pleaded in his Statement of Claim.

p. 3
04

Notice pay and August 2018 salary / Counterclaim

Holding

The Trial Court erred in awarding 2 months' notice pay in the Counterclaim; only 1 month (Kshs 27,663) remained due after the parties' agreement reflected in the letter of August 2, 2018

Reasoning

The contract required 3 months' notice. The Appellant gave 1 month's notice and the Respondent recovered 1 month's notice pay from his August 2018 salary as agreed, leaving only 1 month outstanding. The Respondent conceded the Trial Court's award of 2 months' notice pay was erroneous.

p. 4

Legal principles established

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  • Unfair termination presupposes termination at the instance of the employer; an employee who resigns cannot claim compensation for unfair termination
  • Events occurring after resignation cannot constitute a hostile working environment supporting constructive dismissal

Court orders

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  1. 1.The Appeal is partly allowed
  2. 2.The grant of 2 months' salary to the Respondent in notice pay is corrected to 1-month salary in lieu of notice at Kshs 27,663
  3. 3.The total sum due to the Appellant after set-off is adjusted to Kshs 102,422 – 27,663 = Kshs 74,759
  4. 4.No order on the costs of the Appeal

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49
  • Employment & Labour Relations Court ActSection 12

Cases cited (1)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
On appeal from
Trial Court (not named in the judgment as provided)
null
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act (Trial Court judgment appealed against); remedies provisions cited: Section 12 of the Employment & Labour Relations Court Act and Section 49 of the Employment Act, 2007

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, "Atianyi v Aga Khan Education Service (Appeal E041 of 2021) [2023] KEELRC 586 (KLR)", Case Analysis (2023). Appeal No E041 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/586/eng@2023-03-03

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