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ELRCPartially AllowedCause No E422 of 2023· [2024] KEELRC 2004 (KLR)

Tesniere v Majid Al Futtaim Hypermarkets Limited (Cause E422 of 2023) [2024] KEELRC 2004 (KLR)

Employment and Labour Relations Court
29 July 2024
NMNzioki Wa Makau
1,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court rejected a constructive dismissal claim because the employee waited too long to resign, but ordered his employer to refund a wrongfully deducted deposit.

What this practically means

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Executive summary

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The Claimant sued the Respondent claiming constructive dismissal, alleging that the Respondent unilaterally altered his terms of employment: it withheld 2020 travel benefits, terminated its obligation to settle his house rental bill, reduced the house allowance, deducted a security deposit for a leased house, and deducted 31 days of unpaid leave, before attempting a hasty transfer to Uganda that prompted his resignation in November 2021. He sought 12 months' salary (USD 96,000), USD 10,366 for 31 days' leave, USD 2,200 for the deducted deposit, USD 4,349 in withheld travel benefits, costs and interest. The Respondent denied constructive dismissal, contending it substituted one benefit for another with the Claimant's acquiescence in the Covid-19 period, that he had exhausted his leave days, that repair charges lawfully offset the deposit, and that he resigned voluntarily after declining an offer to lead its Uganda operations. The Respondent relied principally on authorities requiring a claimant to prove constructive dismissal and to resign within a reasonable time of the employer's conduct. The Claimant and his witness testified; the Respondent's witness denied any conduct precipitating the resignation. The Claimant's submissions were not on file at the time of judgment. The Court held there was no causal link between the April 2020 changes and the November 2021 resignation, rejecting the constructive dismissal claim. It found, however, that the Respondent was liable for a full refund of the Kshs 240,000 security deposit, as the lease was between the Respondent and the landlord and it was the Respondent's duty to ensure a proper handover; leave dues appeared factored into final dues. Judgment was entered for the Claimant for USD 2,200, with costs reduced by one half and interest on the award from the date of judgment until payment in full.

Key legal issues

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01

Whether the changes to the Claimant's terms of employment amounted to constructive dismissal

Holding

No constructive dismissal; no causal link between the April 2020 changes and the November 2021 resignation.

Reasoning

The Court found that although there was ground for asserting constructive dismissal in April 2020 when terms were changed, the Claimant resigned at the end of November 2021, having served the Respondent in the interim without any demonstrated animus. The delay broke the chain of causation, consistent with the authorities relied on by the Respondent that an employee must resign within a reasonable time.

p. 3
02

Whether the deduction of the security deposit of Kshs 240,000 was lawful

Holding

The deduction was unlawful; the Respondent was liable for a full refund of the deposit.

Reasoning

The lease was between the Respondent and the landlord, so the duty to ensure a proper handover and ascertain the condition of the premises lay with the Respondent. It could not simply leave the property to the landlord and accept disputed 'repair' charges. The Court doubted the repairs and held the Respondent liable for a full refund of Kshs 240,000, equated with the USD 2,200 award.

p. 3
03

Whether the Respondent owed unpaid leave days

Holding

Leave dues of 34.71 days appear to have been factored into the final dues calculation, so no further award was made.

Reasoning

The Court observed that the 34.71 leave days owed appeared to have been factored into the Claimant's final dues calculation. Consequently, the Claimant received no additional award for leave beyond the refund of the deposit, and the overall entitlement was limited to USD 2,200.

p. 3

Legal principles established

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  • A claimant alleging constructive dismissal must discharge the burden of proving it, including a causal link between the employer's conduct and the resignation.
  • Where the lease of premises is between the employer and the landlord, the employer bears the duty to ensure a proper handover and ascertain the condition of the premises before deducting repair charges from an employee.

Court orders

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  1. 1.Judgment for the Claimant against the Respondent for USD 2,200 being the unlawful deduction of deposit
  2. 2.Costs of the suit reduced by ½
  3. 3.Interest on the USD 2,200 award at court rates from the date of judgment till payment in full

Authorities

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Cases cited (5)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Kenya Union of Journalists v Standard Group
    (Cause 171 of 2020) [2024] KEELRC 1347 (KLR) (6 June 2024)
  • Godfrey Allan Tolo v Tobias O. Otieno & another
    [2022] eKLR
  • Nathan Ogada Atiagaga v David Engineering Limited
    [2015] eKLR
  • Sehmi v Henkel Polymer Co. Ltd t/a Henkel Chemical EA
    (Cause E299 of 2021) [2024] KEELRC 1293 (KLR) (9 May 2024)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

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, "Tesniere v Majid Al Futtaim Hypermarkets Limited (Cause E422 of 2023) [2024] KEELRC 2004 (KLR)", Case Analysis (2024). Cause No E422 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2004/eng@2024-07-29

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