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ELRCDismissedNot stated in the extract (ELRC claim)· [2023] KEELRC 1960 (KLR)

Thaiya v Twiga Foods Limited (Cause 15 of 2020) [2023] KEELRC 1960 (KLR)

Employment and Labour Relations Court
27 July 2023
NMNzioki wa Makau
4,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed a manager's constructive dismissal claim against Twiga Foods because his resignation letter praised the employer, so prove coercion before resigning and suing.

What this practically means

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Executive summary

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The Claimant, formerly an Area Sales Manager with the Respondent, sued for unfair, unlawful and constructive dismissal and withholding of terminal dues. He alleged unfair labour practices including a flawed disciplinary process before a committee composed of his accusers, unattainable targets, unpaid overtime and a hostile work environment that forced him to resign on 2nd July 2019. He sought a declaration of constructive dismissal, twelve months' salary as damages, notice pay, unpaid leave, unremitted NHIF/NSSF deductions, overtime pay, refund of motor vehicle service costs, a certificate of service and costs. The Respondent maintained the Claimant resigned voluntarily, was confirmed after probation, received his certificate of service, took his leave, and that all deductions were remitted. The Claimant testified and called one witness; both parties filed submissions citing authorities on constructive dismissal. The court applied the Coca Cola v Ligaga test, holding that constructive dismissal requires proof that workplace circumstances were intolerable, caused the resignation, left no reasonable alternative, and were caused and controlled by the employer, with the burden on the employee. The Claimant's resignation letter praised the employer and showed no coercion, so the dismissal claim failed. Claims for unremitted statutory deductions and unpaid leave also failed for lack of proof. The entire suit was dismissed with costs to the Respondent on 27th July 2023.

Key legal issues

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01

Whether the Claimant's resignation amounted to constructive dismissal

Holding

No - the Claimant failed to establish any of the elements of constructive dismissal

Reasoning

The court adopted the test in Coca Cola v Ligaga, listing five elements the employee must prove. The Claimant's resignation letter was effusive in praise of the employer, did not advert to any disgruntlement and gave no indication of coercion. The burden of proving constructive dismissal lies on the employee, and none of the elements were demonstrated.

p. 8
02

Whether NHIF and NSSF deductions were unremitted

Holding

Claim not proved; the Claimant bore the burden of demonstrating non-remittance

Reasoning

The Claimant admitted he never attempted to use his NHIF card and could not state as fact that deductions were unremitted, while the Respondent produced payroll records and bank statements showing remittances. Without proof from NHIF/NSSF, the claim failed.

p. 8
03

Whether the Claimant had unpaid leave days

Holding

No - leave was applied for and granted in the resignation letter

Reasoning

The Claimant requested 11 leave days in his resignation letter, which were granted, and he confirmed in testimony that his request was granted and he took the days sought. No outstanding leave claim remained.

p. 8

Legal principles established

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  • The elements of constructive dismissal are that workplace circumstances were intolerable, caused the resignation, left no reasonable alternative, and were caused and controlled by the employer; the burden lies on the employee

Court orders

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  1. 1.The claim and all reliefs sought are dismissed
  2. 2.The Claimant to pay the Respondent's costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)
  • Employment ActSections 43 and 45

Cases cited (7)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Peter Kaburu Karanja v Kirinyaga Construction (K) Limited
    [2020] eKLR
  • Henry Ochido v NGO Co-ordination Board
    [2015] eKLR
  • Nathan Ogada Atiagaga v Davis Engineering
    Cause No.419 of 2014
  • Emmanuel Mutisya Solomon v Agility Logistics
    Cause No. 1448 of 2011
  • Robert Indiazi v Tembo Sacco Limited
    [2018] eKLR
  • Benard Muriuki Gikandi v Kenya Wildlife Service
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Thaiya v Twiga Foods Limited (Cause 15 of 2020) [2023] KEELRC 1960 (KLR)", Case Analysis (2023). Not stated in the extract (ELRC claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1960/eng@2023-07-27

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