Opande v Kenya National Union of Teachers (Cause 238 of 2020) [2024] KEELRC 2785 (KLR)
The bottom line
#A Kenyan court ruled that forcing an employee to quit her private association or lose her job was constructive dismissal, entitling her to compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - the Respondent's ultimatum of 14th May 2019 and its circular of 29th April 2019 showed an intention not to be bound by the contract beyond 18th May 2019, amounting to constructive dismissal
The Respondent's circular required any official forming an alternative association to cease being an official automatically, and the letter of 14th May 2019 gave the Claimant an ultimatum to renounce KEWOTA by 18th May 2019. RW2 admitted she was out of office because the circular had taken effect. The court held this evidenced repudiation, infringing Articles 38 and 41 of the Constitution. The resignation letter of 19th May 2019 was of no effect; dismissal occurred on 18th May 2019.
Whether the special damages heads (ECD training allowance, holiday refunds, welfare refund, manual development, terminal leave) were payable
No - they were not specifically proved
The heads claimed were in the character of special damages requiring specific proof. The Claimant's evidence was found scanty and incoherent and failed to displace the Respondent's evidence of payments made. The welfare refund claim also failed because the Welfare Scheme was an independent entity, a fact unchallenged.
Compensation for unfair dismissal under Section 49(1)(c) of the Employment Act
Awarded at six months' gross salary (Kshs. 1,401,828)
The compensatory remedy is discretionary, its extent guided by the circumstances of each case. The court considered the Respondent's conduct amounting to constructive dismissal, its disregard of the Claimant's constitutional rights, and that she lost her job over her exercise of the right of association, justifying the maximum twelve months' jurisdiction but awarding six months.
Notice pay
One month's salary in lieu of notice awarded, Kshs. 233,638
The Claimant's employment was terminable by twenty-eight days' notice under Section 35 of the Employment Act. No notice was issued in the circumstances, so pay in lieu was due; the claimed four months had no demonstrated contractual basis.
Legal principles established
#- Where an employer infringes or threatens to infringe an employee's constitutional rights, the employee may walk out of employment and successfully sue for constructive dismissal.
- Constructive dismissal is established where the employer's conduct evidences an intention no longer to be bound by the employment contract; the test is one of causation.
Court orders
#- 1.A declaration that the Claimant was constructively dismissed from employment on 18th May 2019
- 2.Compensation for unfair dismissal, six months' gross salary, Kshs. 1,401,828
- 3.One month's salary in lieu of notice, Kshs. 233,638
- 4.Costs of the suit to the Claimant
- 5.Interest on the sums awarded at court rates from the date of judgment till full payment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, Articles 38 and 41 of the Constitution invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opande v Kenya National Union of Teachers (Cause 238 of 2020) [2024] KEELRC 2785 (KLR)", Case Analysis (2024). Cause No 238 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2785/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.