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ELRCPartially AllowedCause No 1616 of 2016· [2023] KEELRC 908 (KLR)

Besson v Centrale Humanitare Medico-Pharmaceutique (Cause 1616 of 2016) [2023] KEELRC 908 (KLR)

Employment and Labour Relations Court
20 April 2023
2,588 words in judgment
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The bottom line

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Kenya's Employment Court confirmed that a 'cancelled' termination followed by exclusion and terminal leave still counts as constructive dismissal, costing the employer millions.

What this practically means

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Executive summary

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The Claimant, employed as Country Representative in DRC on a two-year contract from 1st May 2014, was terminated by letter dated 9th December 2015 for alleged non-performance. The Respondent cancelled that termination by letter dated 19th January 2016, admitting the dismissal was not properly justified, and reinstated her. However, on 1st February 2016 the Respondent issued a 'Terminal Leave' letter notifying non-renewal of the contract expiring 30th April 2016, requiring hand-over in Nairobi, and barring her from the Goma office. The Claimant resigned on 4th February 2016 alleging constructive dismissal. The Respondent denied unfair termination and counterclaimed for three months' notice pay alleging voluntary resignation without notice, failure to hand over sensitive information, and disparagement. The court framed three issues: constructive dismissal, entitlement to remedies, and the Counterclaim. Applying the principles in Coca Cola v Maria Kagai Ligaga, the court held that the sequence of the termination, its recall, terminal leave, exclusion from the workplace and hand-over demands bore the stamps of an employer bent on forcing the employee out, and found constructive dismissal proved. Four months' salary compensation (Kshs. 2,053,854) and three months' notice pay (Kshs. 1,540,390) were awarded, totalling Kshs. 3,594,244 with interest at court rates from judgment. Claims for salary balance, unpaid salary, leave pay and travel expenses failed for want of proof. The Counterclaim was disallowed in its entirety. The Claimant was granted a certificate of service and costs.

Key legal issues

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01

Constructive dismissal

Holding

The sequence of the termination letter, its recall, the terminal leave letter, the bar from the Goma office and the hand-over demand established constructive dismissal.

Reasoning

The court traced the employer's conduct from 9th December 2015 to 1st February 2016 and applied the Coca Cola v Ligaga principles. Although the termination letter was cancelled, the Claimant was never allowed to resume work; she was sent on terminal leave, barred from her workplace and required to hand over in Nairobi while she was unwell abroad. The conduct showed the employer no longer intended to be bound by the contract and was the effective cause of resignation.

p. 6
02

Remedies for constructive dismissal

Holding

Four months' salary compensation and three months' notice pay per the contract were awarded; unproved heads failed.

Reasoning

Compensation was assessed at four months' salary taking into account the Claimant's length of service and the employer's unlawful conduct that prematurely ended employment. Notice pay followed Article 9 of the contract. Salary balance, unpaid salary, leave pay and travel expenses failed for want of proof or because the Claimant did not work the period claimed.

p. 6
03

Respondent's Counterclaim

Holding

The Counterclaim failed in its entirety.

Reasoning

The notice-pay claim presupposed a voluntary resignation, which was negated by the finding of constructive dismissal. Allegations of failure to surrender sensitive information and disparagement of the respondent and its CEO were not proved, so general and exemplary damages were refused and the whole Counterclaim disallowed.

p. 7

Legal principles established

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  • Constructive dismissal occurs where the employer's conduct makes the work environment so intolerable that the employee has no choice but to resign; the resignation is in effect a termination.
  • A pattern of employer conduct demonstrating an intention to force an employee out can amount to constructive dismissal even where a termination letter is recalled.

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 2,053,854 being 4 months' salary in compensation
  2. 2.Kshs. 1,540,390 being 3 months' salary in lieu of notice
  3. 3.Total award of Kshs. 3,594,244 to attract interest at court rates from the date of judgment until payment in full
  4. 4.Claimant entitled to a certificate of service plus costs of the case

Authorities

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Legislation

  • Employment ActSections 35(1) and 41

Cases cited (3)

  • Nathan Ogada Atiagaga v David Engineering Limited
    Cause No 419 of 2014
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Milton M. Isanya v Aga Khan Hospital
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; 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, "Besson v Centrale Humanitare Medico-Pharmaceutique (Cause 1616 of 2016) [2023] KEELRC 908 (KLR)", Case Analysis (2023). Cause No 1616 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/908/eng@2023-04-20

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