Kamau v African Entrepreneur Collective Kenya Limited (Cause E949 of 2022) [2024] KEELRC 2349 (KLR)
The bottom line
#A Kenyan court ruled that a rigged performance improvement plan forced an employee to resign, making it an unfair constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent evaluated the Claimant for QII
A meeting to discuss QII performance was held on 12th July 2022, but the Respondent produced no documentary evidence of the review, scores or minutes
The Court found on a preponderance of evidence that a meeting took place, but neither the document under review, the scores, nor minutes were availed. The Operating Manual required documented reviews kept in Odoo. RWII had no written handover report from Emmanuel and no disclosed feedback from the consultant, board or directors, vindicating the Claimant's assertion that the P.I.P lacked anchorage.
Whether the Claimant was constructively dismissed
Yes - the resignation was involuntary and amounted to constructive dismissal
Applying Western Excavating v Sharp, Nathan Ogada Atiagaga, Milton M. Isanya and Coca Cola v Ligaga, the Court held that the 30-day P.I.P on fundamental matters was patently inadequate, RWII had openly expressed doubt about the Claimant's ability to succeed, the transition option had evaporated, and the Claimant faced a Hobson's choice. The frustrated emails of 1st August 2022 demonstrated she had no option but to quit.
Whether the Claimant is entitled to the reliefs sought
Declaration granted; 12 months' compensation reduced to 2 months' salary; certificate of service granted; 50% costs awarded
Having found constructive dismissal, the declaration was merited. Compensation under Section 49(1)(c) considered the short tenure of 1 year and 7 months, absence of recorded misconduct, the Claimant's failure to express a wish to remain, and payment of terminal dues, justifying the equivalent of 2 months' salary. Certificate of service was due under Section 51 unless already issued, and the Claimant got 50% of costs.
Legal principles established
#- Constructive dismissal occurs where an employer's conduct makes continued employment intolerable such that the resignation is not truly voluntary but in effect a termination
- An employer who predetermines the outcome of a Performance Improvement Plan and openly doubts the employee's ability to meet it creates a hostile environment amounting to constructive dismissal
Court orders
#- 1.A declaration that the Claimant's resignation amounted to a constructive dismissal, i.e. that termination of employment was unfair and unlawful
- 2.Compensation equivalent of 2 months' salary under Section 49(1)(c) of the Employment Act
- 3.A certificate of service under Section 51 of the Employment Act unless already issued
- 4.The Claimant awarded 50% of the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; reliefs under Sections 49(1)(c) and 51 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v African Entrepreneur Collective Kenya Limited (Cause E949 of 2022) [2024] KEELRC 2349 (KLR)", Case Analysis (2024). Cause No E949 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2349/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.