Apudo v Azure Hotel Limited (Cause 816 of 2018) [2024] KEELRC 321 (KLR)

Neither the witness statement written 47 days after the event nor counsel's demand letter particularised the force alleged. The Claimant's oral evidence on the threats (not being allowed to leave; security being called) was contradictory and unsupported. The threat allegedly made by a fellow unarmed manager lacked capacity to be carried into effect. The uniform handwriting and conciliatory contents of the letter belied coercion. Duress renders a signature voidable, but the burden of proving want of free agency lies on the party pleading it, and that burden was not discharged.

Resignation is a unilateral act effective upon handover without need for the employer's acceptance. The Respondent in any event accepted the resignation by letter dated 6th April 2018 and agreed to pay notice. Counsel's submission that the Claimant revoked the resignation the same day lacked legal basis, since a resignation cannot be revoked unilaterally once handed over. On a preponderance of probabilities, the Claimant failed to show the letter was anything other than a resignation.

The court adopted the contractual test from Western Excavating v Sharp as domesticated by the Court of Appeal in Coca Cola v Maria Kagai Ligaga. Constructive dismissal hinges on employer conduct amounting to repudiatory breach making continued employment untenable. The Claimant tendered no evidence of insult, harassment, or any act or omission rendering her employment untenable, and made no reference to any repudiatory breach in her oral evidence. She thus failed to discharge the burden under Section 107(1) of the Evidence Act.

Section 44 of the Employment Act defines summary dismissal as termination without or with less than the contractual or statutory notice. The Claimant alleged she was dismissed and then forced to resign as a cover-up, but neither her witness statement nor the demand letter described how the dismissal occurred prior to the resignation letter. The dearth of evidence of what transpired before and after the letter was written left the court unable to find any summary dismissal.

It was common ground the Claimant received Kshs.144,929.00 covering one month's notice pay, 4 days worked in April 2018, 11 days accrued leave and leave travelling allowance, net of statutory deductions. Leave application forms showed 18 days taken and 8 days pending for 2017; the 11 days paid for 2018 covered pro rata entitlement. Her claim for 56 days over a 14-month tenure was untenable.