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ELRCDismissedELRC Cause dated 14th January 2022· [2023] KEELRC 3126 (KLR)

Seth v Sunflag Textile & Knitwear Mills Ltd & 2 others (Cause E035 of 2022) [2023] KEELRC 3126 (KLR)

Employment and Labour Relations Court
22 November 2023
DMD. K. Njagi Marete
2,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the 1st Respondent from 2001 to 2019 and rising to General Manager and later Chief Executive Officer, alleged that on 14th March 2019 the Respondents appointed a General Manager at Pate Road to take over his responsibilities, asked him to resign, and failed to pay his special Awassa allowance, prompting his resignation on 30th April 2019. He pleaded constructive dismissal and sought accrued leave, service pay, accrued special allowance, twelve months' salary, notice pay, a certificate of service, general damages, costs and interest. The Respondents denied the claim, asserting the Claimant resigned voluntarily by letter dated 1st April 2019 citing a land court case and personal family property matters in India; that Mr R.V. Iyer was transferred only to stem process losses of about Kshs.75,000,000 and reported to the Claimant; that the Awassa allowance was paid in good faith after the entity was disposed of in 2017; and that final dues, including writing off a car loan of Kshs.1,125,000.00 and an ex gratia USD 10,000.00, were settled on 17th December 2019. The court framed four issues and held that the Claimant failed on a balance of probabilities to prove constructive termination, there being no coercion or compulsion; the second issue on wrongful termination became redundant and the Claimant was disentitled to relief. The claim was dismissed with each party bearing their own costs. Judgment was delivered on 22nd November 2023 by D. K. Njagi Marete, Judge.

Key legal issues

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01

Whether the Claimant's resignation amounted to constructive termination of employment

Holding

The Claimant failed to establish constructive termination; his resignation was voluntary and no coercion was proved

Reasoning

The Claimant alleged that the appointment of a General Manager at Pate Road rendered his position redundant and that he was asked to resign. The Respondents proved that the Claimant resigned by a letter dated 1st April 2019 citing a land court case in India and personal family property issues, gave one month's notice, and retained his position and duties throughout. On a balance of probabilities, the Respondents' case prevailed and no coercion was shown.

p. 6
02

Whether the Claimant was entitled to the relief sought

Holding

The Claimant is not entitled to the relief sought since constructive termination was not proved

Reasoning

Having found no termination of employment, the second issue became redundant and the entitlement to terminal dues, notice pay, 12 months' compensation and other reliefs fell away, as those reliefs flowed from a finding of constructive dismissal which failed.

p. 6
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Who bears the costs of the cause

Holding

Each party to bear their own costs

Reasoning

Although the claim was dismissed, the court did not order the Claimant to pay the Respondents' costs; it directed that each party bears their own costs of the suit.

p. 6

Legal principles established

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  • Constructive dismissal is a situation created by the employer rendering continuation of employment intolerable so that the employee has no option but to resign

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their costs of the suit

Authorities

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Cases cited (3)

  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
  • Emmanuel Mutisya Solomon v Agility Logistics
    ELRC No. 1448 of 2011
  • Linah Chebet Ngeny v Independent Electoral and Boundaries Commission
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (original employment dispute)

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, "Seth v Sunflag Textile & Knitwear Mills Ltd & 2 others (Cause E035 of 2022) [2023] KEELRC 3126 (KLR)", Case Analysis (2023). ELRC Cause dated 14th January 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3126/eng@2023-11-22

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