Walker v Valar Frontiers (Kenya) Limited (Cause 161 of 2018) [2024] KEELRC 2779 (KLR)
The bottom line
#A Kenyan court ruled that pressuring an employee to resign counts as unfair dismissal, awarding over USD 135,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's resignation was voluntary or constituted constructive dismissal
The Claimant's resignation on 25th February 2018 was not voluntary; it amounted to unfair constructive dismissal.
The Respondent's own pleading that severance pay was offered 'as a condition of accepting the Claimant's resignation' admitted a coerced, involuntary resignation. The meeting was convened to discuss poor performance complaints from the client without prior notice to the Claimant and without informing him of his right to be accompanied, contrary to Section 41 of the Employment Act. The court found the Respondent was no longer interested in being bound by the contract and left the Claimant with no real option but to resign.
Compliance with Section 41 of the Employment Act where poor performance is alleged
Failure to adhere to the mandatory procedure in Section 41 renders termination, whether constructive or otherwise, unfair.
The Respondent convened a meeting to address client complaints about the Claimant's performance without informing him of the concerns beforehand or of his right to have a fellow employee or union representative present. Section 41 applies where poor performance is alleged, whether formally or informally. The procedure is the fair procedure referred to in Section 43 of the Employment Act.
Remedies for unfair constructive dismissal
The Claimant was awarded seven months' salary as compensation plus notice pay, leave pay, severance pay and the unpaid bonus, but declined salary for the injunctive period, relocation costs, general damages and reinstatement.
Taking into account the circumstances of the abrupt termination, the court exercised discretion under Section 49 of the Employment Act to award the equivalent of seven months' gross salary (USD 13,125 per month). Claims not proved (relocation costs) or duplicative (general damages after compensation) were declined, and reinstatement was barred by lapse of over three years under Section 12(3)(vii) of the ELRC Act.
Legal principles established
#- Where poor performance of an employee is alleged and becomes the subject of a hearing or discussion, the mandatory procedure in Section 41 of the Employment Act must be complied with; failure to do so renders termination unfair.
- A resignation procured where the employer leaves the employee facing imminent termination, without adherence to fair procedure, is involuntary and constitutes unfair constructive dismissal.
Court orders
#- 1.Judgment entered for the Claimant against the Respondent as follows: compensation for unfair termination USD 91,875; one month salary in lieu of notice USD 13,125; accrued but untaken leave USD 2,836.36; 20 days severance pay USD 11,931.82; October 2017 performance bonus USD 16,000; total USD 135,761.18.
- 2.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act.
- 3.Interest on the awarded sum at court rates from the date of judgment.
- 4.The Claimant is awarded costs of the suit.
- 5.The Respondent's Counter-claim (mandatory injunction to recall email and damages for libel) was withdrawn by consent.
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walker v Valar Frontiers (Kenya) Limited (Cause 161 of 2018) [2024] KEELRC 2779 (KLR)", Case Analysis (2024). Cause No 161 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2779/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.