Chepng’otie v Kenya Kazi Security Services (Employment and Labour Relations Cause 36 of 2017) [2023] KEELRC 2868 (KLR)
The bottom line
#A Kenyan court ruled that forcing a worker to choose between resigning or accepting a transfer not in his contract was unfair, constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's employment was unlawfully terminated or he voluntarily resigned
The Claimant was constructively dismissed; his resignation was involuntary and amounted to unfair termination
The service contract provided for employment in Eldoret with no transfer clause, and no transfer letter or policy was produced. The employer gave the Claimant only two options - transfer to Naivasha or resign - forcing a choice between family and job. The immediate acceptance of the resignation and deduction of pay in lieu of notice suggested the employer wanted to be rid of him after losing the deployment contract.
Burden of proving constructive dismissal
The employee must prove the employer introduced intolerable conditions leaving no other remedy but resignation
Relying on Mariana Onica v Sky Aero Limited, the court applied the principle that it is for the employee, not the employer, to show that the employer was responsible for introducing the intolerable condition. The court found the Claimant discharged this burden on the facts.
Entitlement to remedies
Notice pay, leave pro-rata, May 2014 overtime and 6 months' compensation awarded; service pay refused
Notice pay was computed on statutory minimum rates plus 15% house allowance. Compensation was assessed under section 49(4) of the Employment Act considering length of service and termination circumstances. Service pay was barred by NSSF membership and under-five years' service. Uncontroverted evidence of untaken leave and recorded overtime supported those awards.
Legal principles established
#- A transfer is a prerogative of the employer only if the terms of employment provide for it
- Where an employer gives an employee no option but to resign or accept a transfer not provided for in the contract, the resignation is a constructive dismissal
Court orders
#- 1.Declaration that the Claimant's resignation was involuntary and amounted to unfair termination
- 2.1 month's salary in lieu of notice Kshs 12,549
- 3.Leave pro-rata Kshs 4,666.67
- 4.Overtime Kshs 3,153
- 5.Compensation for unfair termination of 6 months' salary Kshs 75,294
- 6.Total judgment of Kshs 95,662.67
- 7.Respondent to issue the Claimant a certificate of service
- 8.Costs of the suit to the Claimant
- 9.Interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepng’otie v Kenya Kazi Security Services (Employment and Labour Relations Cause 36 of 2017) [2023] KEELRC 2868 (KLR)", Case Analysis (2023). Cause No. 8 of 2017 (Memorandum of Claim dated 4th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2868/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.