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ELRCDismissedNot stated in judgment· [2023] KEELRC 3399 (KLR)

Kiambi v Haco Tiger Brands (EA) Limited (Cause 1059 of 2017) [2023] KEELRC 3399 (KLR)

Employment and Labour Relations Court
8 December 2023
SRStella Rutto
6,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed an HR Manager's constructive dismissal claim because she resigned five months after being cleared, breaking the link to her employer's conduct.

What this practically means

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Executive summary

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The Claimant, formerly the Respondent's Human Resource Manager, alleged that she was constructively dismissed following her suspension on 18th September 2015 for alleged unethical conduct, a disciplinary process that exonerated her, and subsequent acts of frustration by the Acting Managing Director, including repeated references to fraud, sidelining and usurpation of her duties. She resigned on 5th April 2016 and sought declarations of wrongful constructive dismissal and constitutional violation, twelve months' salary as compensation, general damages, damages for mental anguish, a certificate of service and costs. The Respondent maintained that the suspension was to allow investigations, that she was cleared and reinstated, and that her resignation was voluntary and borne of her own misconceptions. The Court framed two issues: whether there was constructive dismissal and what reliefs were available. Applying the Court of Appeal's tests in Coca-Cola v Ligaga, it found the suspension irregular because the Ethics Report relied upon post-dated it, but held that the Claimant had been exonerated and resigned almost five months after resuming duty, an interval too long to sustain constructive dismissal. Her allegations of interference with her duties were not clearly established, her job description was not exhibited, and the burden of proving repudiatory breach rested on her and was not discharged. The claim was dismissed in its entirety with each party bearing their own costs.

Key legal issues

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01

Whether there is a case of constructive dismissal

Holding

No; although the suspension was irregular, the Claimant was exonerated, resumed duty and resigned almost five months later, and she failed to prove interference with her duties amounting to a repudiatory breach

Reasoning

The Court applied the Coca-Cola tests: objective assessment of the employer's conduct, causal link, termination within a reasonable time, and burden on the employee. The suspension preceded any documented allegations (the Ethics Report post-dated it), rendering it irregular, but the Claimant was cleared by the disciplinary committee and reinstated. Her resignation five months later broke the causal chain. Claims that her duties were usurped were not contextualized, her job description was not exhibited, and no repudiatory breach of fundamental terms was proved.

p. 10
02

What reliefs, if any, avail to the Claimant

Holding

None; the declaratory and compensatory reliefs could not be sustained once constructive dismissal failed

Reasoning

Having found no constructive dismissal, the Court held the claims for compensatory damages and declarations could not stand and dismissed the entire claim with no order as to costs, each party bearing its own costs.

p. 12

Legal principles established

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  • Constructive dismissal occurs where the employer's conduct leaves the employee with no choice but to resign, requiring proof of a repudiatory breach going to the root of the contract, judged objectively and causally linked to the resignation, with the burden on the employee
  • A case of constructive dismissal cannot be inferred by reading between the lines; it must be clearly established by evidence
  • An employee must terminate the employment within a reasonable time of the employer's alleged repudiatory breach

Court orders

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  1. 1.The Claim is dismissed in its entirety
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act2007 (generally, on constructive dismissal not being defined)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Josephat Kibet Kipruto v Gajipara Builders Limited
    (2019) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Kiambi v Haco Tiger Brands (EA) Limited (Cause 1059 of 2017) [2023] KEELRC 3399 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3399/eng@2023-12-08

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