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ELRCDismissedNot stated in the judgment· [2024] KEELRC 2451 (KLR)

Fondo v Kenya Chemical Workers Union (Employment and Labour Relations Cause 27 of 2019) [2024] KEELRC 2451 (KLR)

Employment and Labour Relations Court
4 October 2024
AMAnna Ngibuini Mwaure
2,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employee who resigned after failing to prove intolerable working conditions was not constructively dismissed, dismissing his compensation claim.

What this practically means

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Executive summary

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The Claimant, an accountant, sued the Respondent alleging constructive dismissal. He claimed that upon resuming from annual leave in May 2017 his duties were never handed back, amounting to unilateral variation of his contract without consent, and that the Respondent disrupted his university studies by extending his working hours. He contended these frustrations forced him to resign effective 15th October 2018, and sought payment in lieu of notice and 12 months' compensation. The Respondent countered that it had sponsored the Claimant's education from KATC through CPA and CPS, that his performance was poor, and that he absented himself from March 2018 without producing medical reports while still being paid his full salary until his self-styled 'constructive dismissal' letter. It characterized his conduct as insubordination and gross misconduct. The court framed the sole issue as whether the Claimant was constructively dismissed or resigned voluntarily. Applying the test in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga and Shighadi Sinoya v Avietech Systems, the court held the burden lay on the employee to prove intolerable conditions. It found the Claimant failed to prove any illness or to submit medical reports, noted the Respondent continued paying his salary and asked him to resume work, and that financing his education was never contractual. It concluded he resigned voluntarily. The claim for compensation was dismissed; the Claimant was awarded his certificate of service within 30 days, with each party bearing its own costs.

Key legal issues

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01

Whether the Claimant was constructively dismissed or resigned voluntarily

Holding

The court found the Claimant resigned voluntarily; the Respondent did not breach the contract or create intolerable conditions

Reasoning

Applying the Coca Cola v Ligaga test, the court found no repudiatory breach. The Claimant was absent from work from March 2018 to October 2018 without producing medical reports, yet was paid his full salary. The Respondent repeatedly asked him to submit medical reports and resume duty, conduct inconsistent with a hostile employer. His university fees were never a contractual entitlement, and his resignation letter amounted to complaints with demands rather than a response to intolerable treatment.

p. 5

Legal principles established

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  • The burden is on the employee to demonstrate intolerable conditions justifying constructive dismissal, and the claim must be pleaded and evidenced
  • An employer demanding medical reports and requesting the employee to resume work is inconsistent with conduct justifying a finding of constructive dismissal

Court orders

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  1. 1.Claim dismissed
  2. 2.Respondent to give the Claimant his certificate of service within 30 days
  3. 3.Each party to meet their respective costs of the suit

Authorities

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Legislation

  • Employment Actsection 30(1)(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Shighadi Sinoya -Vs- Avietech Systems Limited
    (2017) eKLR
Jurisdiction invoked
First-instance employment and labour relations dispute pursuant to the Employment Act and the court's jurisdiction over employment matters

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, "Fondo v Kenya Chemical Workers Union (Employment and Labour Relations Cause 27 of 2019) [2024] KEELRC 2451 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2451/eng@2024-10-04

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