SMW v DHL Kenya (Cause 698 of 2019) [2023] KEELRC 1468 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Concept and consequences of secondment
Secondment creates a tripartite relation; the primary employer remains the legal employer, the host the economic employer; only the primary employer may terminate the primary contract while the host may only terminate the secondment
The court defined secondment as a temporary release of an employee to another employer with an expectation of resuming service with the original employer. It drew on academic writing and case law to hold that the primary employer retains legal responsibility save as expressly excluded by the secondment agreement, and drew a comprehensive agreement specifying responsibility for each right.
Legality of DHL Swaziland's termination of the secondment
Lawful; the host employer observed natural justice by convening a disciplinary hearing, and the Claimant evaded the process
The court found the host employer received a sexual harassment complaint, summoned the Claimant to a disciplinary session, and only terminated the secondment after his continued unauthorized absence. It held the Claimant could not challenge the process he had frustrated by evasion, as that would amount to pleading a defence after the fact.
Respondent's power to continue disciplinary proceedings after secondment closed
The primary employer holds residuary disciplinary mandate and could legitimately inquire into infractions committed during secondment
Upon termination of the secondment the employee reverts to the primary contract. The Respondent reinstated the Claimant to his former role and was entitled to take up the pending disciplinary matters. Instituting disciplinary action is not itself a breach of contract or evidence of a hostile work environment.
Effect of the Claimant's resignation and the purported summary dismissal
The resignation of 23rd December 2019 terminated the contract; the Respondent's rejection of the resignation and subsequent termination of 17th February 2020 were of no legal effect
Resignation requires no employer concurrence and takes effect immediately, subject to contract terms on notice. Once an employee resigns, the employer loses disciplinary control as the substratum of that power is gone. However, because the resignation was a normal termination rather than a response to intolerable conditions, it yielded no constructive dismissal claim.
Constructive dismissal
Not established; the resignation was not caused by intolerable conditions attributable to the Respondent
The Claimant could not rely on secondment-period events, having failed to resign while the secondment subsisted. The post-secondment conduct complained of - investigation and disciplinary process - did not constitute a significant breach going to the root of the contract. An employer commencing a disciplinary process does not thereby create a hostile work environment.
Legal principles established
#- Only the primary/legal employer can terminate the primary employment contract; the host employer may only terminate the secondment arrangement
- An unequivocal resignation takes effect immediately without the employer's concurrence; pending disciplinary proceedings abate and the employer cannot reject or defer the resignation
- The host employer is bound by natural justice before terminating a secondment
- Residuary disciplinary power over a seconded employee for infractions during secondment vests in the primary employer
- Unexplained delay in resigning in reaction to intolerable conduct waives the right to plead constructive dismissal
Court orders
#- 1.Dismissal of the Claimant's claim
- 2.Costs of the suit awarded to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination/constructive dismissal claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SMW v DHL Kenya (Cause 698 of 2019) [2023] KEELRC 1468 (KLR)", Case Analysis (2023). Cause No 698 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1468/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.