Besson v Centrale Humanitare Medico-Pharmaceutique (Cause 1616 of 2016) [2023] KEELRC 908 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Constructive dismissal
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.
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.
Remedies for constructive dismissal
Four months' salary compensation and three months' notice pay per the contract were awarded; unproved heads failed.
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.
Respondent's Counterclaim
The Counterclaim failed in its entirety.
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimant for Kshs. 2,053,854 being 4 months' salary in compensation
- 2.Kshs. 1,540,390 being 3 months' salary in lieu of notice
- 3.Total award of Kshs. 3,594,244 to attract interest at court rates from the date of judgment until payment in full
- 4.Claimant entitled to a certificate of service plus costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.