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ELRCPartially Allowed· [2024] KEELRC 1323 (KLR)

Tongola v Flamingo Horticulture Kenya Limited (Employment and Labour Relations Cause 779 of 2019) [2024] KEELRC 1323 (KLR)

Employment and Labour Relations Court
30 May 2024
MNMathews Nderi Nduma
3,925 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 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, confirmed on 4/9/2018 as Commercial Manager at Dudutech (a subsidiary of the respondent Flamingo Horticulture Kenya Limited) on a gross salary of Kshs.400,000, sued on 13/11/2019 alleging constructive dismissal. He testified that on 14/1/2019 the respondent's Managing Director abused, humiliated and physically confronted him, snatching his phone and laptop, hitting him with a mouse and ordering him from the premises in full view of staff, prompting an involuntary resignation the same day. The respondent, through its HR lead, maintained that the claimant resigned voluntarily, that the notice period was mutually waived, that it never accessed his personal communications, and that it discovered after separation that he had consulted for ISDA in breach of the conflict of interest policy. The court framed two issues: whether constructive dismissal was proved on a balance of probabilities, and entitlement to reliefs. Applying the Court of Appeal's principles in Coca Cola East and Central Africa Limited v Maria Kega Liganya and the definition in Nahan Ogada Atagaya v David Engineering Limited, it found the MD's conduct went to the root of the contract; the MD did not testify to controvert the claimant's account, and the conflict of interest issue was raised only after separation and was moot. The dismissal was held unlawful and unfair, contrary to sections 36, 41, 43 and 45 of the Employment Act. The court awarded Kshs.1,200,000 notice pay, Kshs.42,560 for 3.2 untaken leave days and Kshs.800,000 as two months' compensation under section 49, with interest and costs; gratuity, NSSF/NHIF clearance, medical allowance and exemplary damages claims failed.

Key legal issues

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01

Whether the claimant was constructively dismissed

Holding

Yes - the MD's violent and humiliating conduct on 14/1/2019 went to the root of the contract and amounted to a repudiatory breach; the resignation was not voluntary

Reasoning

The MD, the claimant's ultimate supervisor, physically confronted the claimant, snatched his phone and laptop and ordered him from the premises. The MD did not attend hearing to controvert this evidence, leaving one uncontroverted side of the story. HR only learned of the grievance on receipt of the resignation letter, so no grievance procedure had been invoked. Applying the objective test from Coca Cola, the conduct was a fundamental breach; the resignation was involuntary and the dismissal unlawful and unfair under sections 36, 41, 43 and 45 of the Employment Act.

p. 7
02

Whether the claimant's consultancy for ISDA amounted to a conflict of interest defeating the claim

Holding

No - the conflict of interest issue was raised by the respondent only after separation and is moot

Reasoning

The respondent first raised the consultancy breach after the claimant had resigned, and it was never a live issue between the parties before the resignation. It therefore could not found a defence to the constructive dismissal claim.

p. 7
03

Entitlement to compensation quantum

Holding

Two months' salary awarded as compensation under section 49, plus notice pay and leave days

Reasoning

The claimant served only six months; he had already been awarded three months' notice pay and other terminal benefits, and failed to collect the certificate of service and dues. He lost career prospects and did not contribute to the dismissal. The court considered these section 49 factors and awarded the equivalent of two months' salary, Kshs.800,000.

p. 8

Legal principles established

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  • The burden of proving constructive dismissal lies on the employee who alleges it
  • Employer conduct that goes to the root of the employment contract constitutes repudiatory breach amounting to constructive dismissal, assessed objectively
  • Compensation for unlawful dismissal is confined to section 49 of the Employment Act, and exemplary damages are not awarded in addition

Court orders

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  1. 1.Kshs.1,200,000 in lieu of three months' notice
  2. 2.Kshs.42,560 in lieu of 3.2 leave days not taken
  3. 3.Kshs.800,000 being two months' compensation for unlawful constructive dismissal
  4. 4.Interest at court rates from date of judgment till payment in full
  5. 5.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment and labour relations 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, "Tongola v Flamingo Horticulture Kenya Limited (Employment and Labour Relations Cause 779 of 2019) [2024] KEELRC 1323 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1323/eng@2024-05-30

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