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ELRCDismissedNot stated in judgment· [2024] KEELRC 780 (KLR)

Wanjala v Majid Al-Futaim Limited (Cause E675 of 2022) [2024] KEELRC 780 (KLR)

Employment and Labour Relations Court
28 March 2024
JRJames Rika
1,340 words in judgment
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The bottom line

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Resigning to dodge a workplace disciplinary hearing is not constructive dismissal, Kenya's Employment Court ruled.

What this practically means

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Executive summary

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This was an undefended claim heard by formal proof before the Employment and Labour Relations Court at Nairobi. The Claimant, employed as a Checker from 28th December 2017 and suspended on 23rd September 2021, resigned and alleged constructive dismissal, seeking notice pay, unpaid leave, NHIF and NSSF refunds, travel and house allowance, service fees, general damages, costs and interest. The Claimant gave oral evidence and filed closing submissions. The court, per James Rika, Judge, found the evidence insufficient to establish constructive dismissal. Applying the Court of Appeal's principles in Coca Cola East and Central Africa Limited v Maria Kagai Ligaga [2015], the court held that constructive dismissal requires proof of repudiatory breach making the working environment intolerable, with the burden on the employee. The Respondent's suspension letter, which detailed accusations of dishonesty and bribery and advised of a contemplated disciplinary hearing, was issued within the contract and the Respondent's managerial prerogative; it was not repudiatory breach. The Claimant's resignation was held to be an avoidance of the disciplinary process rather than a response to intolerable conduct. Additional allegations of being assigned supervisory duties and lockout were unpleaded and unsupported. The court also found the letter dated 1st October 2021 merely accepted the Claimant's resignation rather than terminating the contract. The claim was dismissed with no order on costs, dated 28th March 2024.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

No. The resignation was voluntary and made to avoid the disciplinary process; the suspension letter did not amount to repudiatory breach.

Reasoning

The Court of Appeal's principles in Coca Cola v Ligaga require the employee to show the employer's conduct entailed repudiatory breach making the working environment intolerable. The Respondent only suspended the Claimant with full pay, gave details of accusations, and advised of a disciplinary process. That was within its contractual and managerial prerogative, not breach of fundamental terms. The Claimant resigned rather than answer grave accusations of dishonesty and bribery, placing himself beyond disciplinary control. Allegations of being assigned supervisory work and lockout were unpleaded and unsupported by evidence.

p. 3
02

Whether the Respondent terminated the Claimant's contract

Holding

No. The letter dated 1st October 2021 merely acknowledged and accepted the Claimant's resignation; it was not a letter of termination.

Reasoning

The Court found the pleaded termination letter was in fact an acceptance of resignation. If the Respondent had truly terminated the contract, a constructive dismissal claim would have been inconsistent, since the pleaded termination would have been initiated by the Respondent.

p. 3

Legal principles established

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  • Resignation to avoid a pending disciplinary process does not amount to constructive dismissal
  • Employers' managerial prerogative to exercise disciplinary control (suspension, notice to show cause, disciplinary hearing) is not, by itself, a hostile work environment warranting a constructive dismissal claim
  • The employee bears the burden of proving repudiatory breach by the employer

Court orders

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  1. 1.The Claim is dismissed.
  2. 2.No order on the costs.
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (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, "Wanjala v Majid Al-Futaim Limited (Cause E675 of 2022) [2024] KEELRC 780 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/780/eng@2024-03-28

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