Elisha Ogolla Ogutu v International Fertilizer Development Center

d. An order directing the Respondent to issue the Claimant with a Certificate of Service. e. The sum of Kshs. 15,137,426/- being: i. Kshs. 8,208,828/- being balance of salary unpaid for the remainder of the contract period under the doctrine of legitimate expectation, September 2024 to March 2026; ii. Outstanding annual leave days earned but not paid; iii. Kshs. 5,472,552/- being the equivalent of 12 months' salary on account of unlawful termination; iv. Kshs. 456,046/- being 1 month's salary in lieu of notice; v. Kshs. 1,000,000/- being general damages for discrimination leading to psychological and emotional anguish. f. Costs of this Cause. g. Interest on the sums in prayers (e) and (f) until payment in full. Claimant's Case 2 The Claimant avers that on 27th March 2024, the Respondent offered him, and he accepted, employment as a Global Gender Specialist MSD, at a consolidated monthly salary of Kshs. 456,046, for a fixed term running from 1 st April 2024 to 31st March 2026. He avers that he served the Page 2 of 38

page 2 of 38

Respondent honestly and diligently, dedicating his time and energy to its business. 3 It is the Claimant's case that in the course of his work, he faced significant discrimination and derogatory treatment from his supervisor, the Director, Market Systems Development (MSD), which created an intolerable work environment. 4 He states that the derogatory language continuously used by his supervisor violated the Respondent's policies, created a hostile work environment, caused him emotional distress and affected his ability to effectively perform his job. 5 The Claimant avers that the intolerable work environment led to severe headaches, fatigue and collapsing episodes, prompting him to seek psychiatric help. He was diagnosed at Chiromo Lane Medical Centre with severe depression, a condition he had never experienced before, and for which he is still receiving treatment and taking medication. 6 The Claimant avers that he raised these issues with the Respondent's Human Resource department on diverse dates, both orally and in writing, including through a complaint lodged on the Ethics Point Platform on 2 nd September 2024, but no response was given nor action taken to address his allegations. Page 3 of 38

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7 He contends that the Respondent's failure to act on a legitimate complaint amounts to discrimination and constructive dismissal, owing to the frustration arising from the failure to address his concerns. 8 It is the Claimant's case that the attitude, draconian measures and contempt exhibited by the Respondent's senior employees, together with the difficult, unpleasant and intolerable working conditions created by his supervisor, were aimed at forcing him out of the Respondent's employment. 9 He avers that he was left with no option but to involuntarily tender his resignation on 27th September 2024, which the Respondent shortly thereafter accepted, immediately requiring him to hand over, which he did. 10 The Claimant asserts that his resignation was involuntary and was occasioned by the unbearable and intolerable working environment created by the Respondent, and therefore amounts to constructive termination. 11 He contends that the termination was effected in a most callous manner, in violation of his constitutional right to fair labor practices, including his right to reasonable working conditions, freedom from discrimination and his inherent right to dignity, thereby exposing him to public humiliation and ridicule. Page 4 of 38

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12 The Claimant avers that he is entitled to maximum compensation, having served the Respondent diligently despite the constant frustration from his supervisor and the Respondent; having expected to serve the entire duration of his contract; and having not been reasonably expected to continue working after his harassment concerns were not satisfactorily addressed. 13 He further states that he did not acquiesce in or contribute to the illegalities committed by the Respondent, which grossly flouted the law relating to employment and the Constitution. 14 It is the Claimant's case that the Respondent's decision to constructively, wrongfully and unfairly terminate his employment was unlawful, unjustified and devoid of both substantive and procedural fairness. 15 He contends that the termination was illegal, contrary to the rules of natural justice, unfair labour practices, and contrary to the Constitution and the Employment Act. He avers that he has suffered and continues to suffer loss, and urges the Court to allow his claim as prayed. Respondent’s Case 16 The Respondent filed a Memorandum in Response dated 13th February 2025, in which it denies the Claimant's claim save for what is expressly admitted. Page 5 of 38

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17 It admits employing the Claimant on the basis of his qualifications, as a Global Gender Specialist MSD, on a two-year contract commencing 1st April 2024, subject to a three-month probation period renewable once. 18 The Respondent avers that its policies require that at the end of the probation period, an assessment be done to determine the employee's suitability for continued employment. It states that the Claimant's competence was questionable, as the probationary report revealed that he was struggling with key performance areas required of his job description, despite guidance from his supervisor and introduction to team members who would aid him in performing his tasks. 19 The respondent avers that the Claimant had not proven that he had the experience and skills to deliver on the job requirements and additional time was required to ascertain whether he could work independently and deliver within timelines. 20 It is the Respondent's case that the Claimant's probation, which ended extended, on and a 19th July probation 2024, was extension consequently action plan developed to support identified projects with guidance from his manager. Page 6 of 38

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21 The Respondent avers that a further review held on 29 th August 2024 revealed that the Claimant's performance did not meet the requirements of the role. 22 It states that the Claimant did not value his supervisor's advice, as whenever she gave him instructions, he was adamant that she ought to have done so in a particular manner, and further that in one instance, he maligned his supervisor with colleagues with the intention of damaging her reputation. 23 The Respondent denies that the Claimant was subjected to discrimination or derogatory treatment and avers that the working environment was conducive to the performance of his contractual obligations. 24 It disputes the Claimant's belief that the work environment was the cause of his alleged severe headaches, exhaustion and collapsing episodes, if any, and contends that being employed by the Respondent did not preclude the presence of external contributing factors that led to the said health issues. 25 It further avers that it ensured the safety of its employees, citing that the Claimant was allowed to work from home between 25th and 27th June 2024 owing to the Finance Bill protests, and was also allowed by his supervisor to work from home after his paternity leave, even before the organization-wide flexible policy came into effect. Page 7 of 38

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26 The Respondent denies that it failed to act on the Claimant's complaints and avers that it promptly responds to allegations made by any of its employees. It states that the Claimant was fully aware of the grievance procedure set out in its HR Manual but failed to adhere to it, in that he neither met with his supervisor to discuss the alleged grievances nor filed a copy of the grievance with the Human Resource Unit or the Regional Director. 27 The Respondent avers that, be that as it may, its grievance resolution process, facilitated through the EthicsPoint Platform, is designed to resolve complaints within thirty (30) days. 28 It states that although the Claimant lodged his complaint on 2nd September 2024, he resigned on 27 th September 2024, before the resolution timeline had elapsed. 29 It is the Respondent’s case that the Claimant was on sick leave from 13th September 2024 until he resigned, and that it could not have recalled him to aid in the investigation of his complaint until his return, so as not to interfere with his sick leave. 30 The Respondent avers that the Claimant's resignation was a stratagem contrived to prevent it from acting on his complaint within the timelines indicated in the manual and to maliciously set it up for this claim. Page 8 of 38

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31 It is the Respondent's case that it was surprised by the Claimant's resignation, considering that his probation period had been extended and a review meeting set for 30th September 2024. 32 It denies that the resignation was involuntary and maintains that it was voluntary; the Respondent avers that the Claimant breached the terms of the contract and the employment laws, as he was required to issue a seven-day notice before terminating the contract. 33 It states that by its letter dated 30 th September 2024, it accepted the resignation, indicated that it would process the Claimant's entitlements, and required him to return all its materials. 34 The Respondent contends that the Claimant came to court with unclean hands, having failed to disclose all material facts, namely that his performance review revealed performance issues; that he had a previous altercation with his supervisor while intending to destroy her reputation; and that he failed to travel for official duty on 2nd September 2024, citing non-receipt of his travel visa despite having received it on 30th August 2024, thereby occasioning the Respondent financial loss. Page 9 of 38

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35 The Respondent avers that the Claimant is not entitled to any of the remedies sought, as he was the author of his own misfortune, and is not entitled to salary for the remainder of the contract period, having breached its terms by failing to serve a one-week notice before terminating his employment. 36 It maintains that it complied with all employment laws in Kenya, issued the Claimant with a work certificate dated 15th October 2024, and paid him all his outstanding dues. Evidence in Court 37 The Claimant, Elisha Ogolla Ogutu (CW1), testified that he is a Gender Specialist. He adopted his witness statement dated 11th November 2024 as his evidence in chief and produced his list and bundle of documents of the same date as exhibits 1 to 6. 38 He testified that he was harassed by his line manager, who was quite abusive towards him. He raised the issue orally with HR and kept following up, but nothing was done. He then raised the complaint on the Respondent's platform on 2nd September 2024. 39 He testified that the situation affected him to the point that he sought treatment at Chiromo, and that his psychologist recommended he take time off work, which he communicated to HR. He Page 10 of 38 attributes his mental

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condition to the harassment he suffered from the Respondent's staff. 40 On cross-examination, CW1 testified that he was aware of the grievance procedures and had access to various offices, including HR, to which he reported orally. He conceded that he has no evidence of those oral complaints on the court record. 41 It is CW1's testimony that he was not aware the complaint was to be resolved within 30 days, and that although officers were assigned to his complaint, he did not know who they were because the platform was anonymous. 42 He testified that he was on sick leave until he resigned on 27th September 2024, so he could not be called for a meeting and the veracity of his complaint could not be tested. It is his testimony, however, that the Respondent could have communicated with him by email. 43 He testified that he did not return to the office after lodging the complaint, and that the outcome of the investigation was not out when he resigned. CW1 conceded that no medical report on his condition had been produced, that his psychiatrist, Dr. Simiyu, was not a witness, and that the sick sheet, the first of which was issued on 2nd September 2024, does not state that his condition was caused by the work environment. Page 11 of 38

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44 He testified that he attended a project event at the Respondent's premises after resigning, and that his resignation letter was accompanied by his counsel's letter asserting constructive dismissal 45 On re-examination, CW1 testified that his supervisor abused him every time they met. It is his testimony that his probation ended on 30th June 2024, as shown in the Respondent's letter at page 7 of its documents, but the Respondent decided to extend it to September 2024. 46 He testified that his last working day was 12 th September 2024 and that he resigned because of the harassment and because he was not assisted when he complained. It is his testimony that this was his first time going through depression, and that he got better after leaving the toxic environment. 47 RW1, Patrick Boro, adopted his witness statement as his evidence in chief. On cross-examination, he testified that he works in the programmes department and does not know the Claimant personally. 48 He testified that he never worked directly under Beryl Adel and was not responsible complaints. Page 12 of 38 for handling employee

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49 It is RW1's testimony that nothing was done to resolve the Claimant's complaint because the Claimant resigned before the matter was discussed. The employee was to receive a response within 10 days, but he is not aware that this happened. 50 He testified that another employee under Beryl had also resigned, and that work stress can lead to mental stress. 51 On re-examination, it is RW1's testimony that there were other resignations after the Claimant left, but he knows of no other complaints. 52 RW2, Christine Kinya Berg, the Respondent's HR Business Partner, adopted her witness statement at pages 7 to 9 of the Respondent's bundle and produced the Respondent's documents. 53 On cross-examination, she testified that she was never the Claimant's supervisor, that Beryl Adel was, and that her evidence is based on records and reports; and that she never assessed the Claimant's performance herself. 54 RW2 testified that the Claimant's probation was to end on 30th June 2024. She testified that the Respondent did not communicate any extension before that date and that he was thereby deemed confirmed. Page 13 of 38

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55 It is her testimony that the Respondent communicated with the Claimant on 22nd July 2024 on his probation follow-up, and that the letter titled "Extension of Probation Period" at page 17 was issued while he was out of office on sick leave. 56 RW2 testified that she first saw the complaint when it was raised on the EthicsPoint platform. The complaint was acknowledged, assigned to officers, and that a review had begun, though she conceded that no report of any review has been produced. 57 She testified that the Claimant's sick sheet of 13 th September 2024 indicated that he needed seven days' rest due to ongoing harassment at the workplace. 58 It is RW2's testimony that she needed 30 days to resolve the complaint, and that up to 27 th September 2024 the Respondent was still waiting to get the Claimant's side of the story. 59 RW2 conceded that the Respondent's HR Policy and Manual required a response within 10 days, between 2 nd and 12th September 2024. She conceded that the Respondent did not resolve the complaint within that time, only communicating that it was under review, and did not respond to the Claimant's follow-up. Page 14 of 38

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60 She testified that the Respondent accepted the resignation letter without responding to it because it had already received the demand letter, the two having come on the same day. It is her testimony that no exit investigation was conducted before the resignation was accepted. 61 RW2 testified that Beryl Adel was not called as a witness because she left the Respondent's employment in 2025. She testified that no performance matrix had been produced and that the Claimant was placed on a Performance Improvement Plan. 62 On re-examination, however, RW2 testified that she was not aware of any complaint on the Claimant's performance and that he was not on a PIP, as he was still on probation. 63 It is her testimony that the Claimant's last day at work was 13th September 2024, that the review was not complete, and that no oral complaint was made to her. Claimants’ Submissions 64 The Claimant submitted on six issues: whether, by the time the Respondent purported to extend the Claimant's probation period and conduct a second probationary review, the Claimant had already been confirmed in employment by operation of the law; whether the Page 15 of 38

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Respondent's purported extension of the Claimant's probation period of 24th September 2024 was valid in law; whether the Claimant was subjected to discrimination, derogatory treatment and a hostile working environment by his supervisor, and whether the Respondent took any action on the Claimant's complaint; whether the Claimant's resignation of 27th September 2024 amounted to a constructive dismissal; whether the Respondent's Memorandum of Response discloses any valid or sustainable defence to the Claimant's claim; and what reliefs the Claimant is entitled to. 65 On the first issue, the Claimant relied on Section 42(2) of the Employment Act, 2007, which provides that: "A probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee." 66 He submitted that Clause 1.11 of his contract gave effect to this provision by prescribing a probation period of three months renewable once, and that on the Respondent's own letter of 24th September 2024, his probation ended on 30th June 2024, with the review done on 19 th July 2024 on account of his paternity leave. He argued that an employer who allows an employee to continue working beyond the probationary period without a timeous written extension, made with the employee's agreement, confirms the employee by operation of law. Page 16 of 38

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67 Reliance was placed on Irungu v Primefuels Kenya Limited [2022] KEELRC 44 (KLR), where the Court held that: “The confirmation of an employee is an operation of law unless by writing the employer extends the probationary period in writing. Extension of probationary period must be for just cause and not at the whim of the employer. In the case of Catherine Kathina Kelly v Ilkisonko Sacco Limited (supra) Rika J. held: There is no requirement for a letter of confirmation upon expiry of probationary period. It suffices that the employee continues to work under the contract of employment granted to the employee upon expiry of the probationary period and in the absence of a letter of confirmation, the employee converts to a permanent employee by operation of the law." He further relied on Patrick Korir Rotich v Unilever Tea Kenya Limited [2016] eKLR for the proposition that probation cannot be left indefinite so as to keep an employee in perpetual limbo. 68 The Claimant submitted that no written extension was communicated to him between 19th July 2024 and 24th September 2024, a period of over two months during which he continued to render full service. He placed emphasis on the Document Audit Trail in the Respondent's own bundle, which shows that the Probationary Period Review Form, though purporting on its face to record a review completed on 19th July 2024, was created and Page 17 of 38

page 17 of 38

signed by his supervisor on 23rd September 2024, and that the extension letter followed the next day, some eightyfive days after the probation lapsed. 69 He submitted that this gap is not a technicality but demonstrates that the Respondent made no documented decision on his confirmation at the material time, and that the review and extension documents were manufactured retrospectively after he had lodged his complaint and while he was on psychiatric sick leave, in a bid to frustrate him. 70 It is the Claimant’s submission that he became a confirmed employee by 20th July 2024 at the latest, rendering every subsequent probationary step void, and that the Memorandum of Response, premised throughout on his being a probationer, proceeds from a false foundation. 71 It was further submitted that as a confirmed employee, the Claimant was entitled to the protection of Sections 41, 43 and 45 of the Employment Act, including notification and a hearing on any allegation of poor performance or misconduct, none of which he was accorded. He contended that even on the Respondent's probationary theory, probationary employees are entitled to fair labour practices and fair administrative action under Articles 41 and 47 of the Constitution, relying on Kibuchi & 6 others Page 18 of 38

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v Mount Kenya University; Attorney General (Interested Party) [2021] KEELRC 2310 (KLR), and that he was never given an opportunity to respond to the performance shortfalls pleaded for the first time in the Memorandum of Response. 72 In the alternative, the Claimant submitted that the extension was in any event invalid for want of his agreement as required by Section 42(2). The letter of 24 th September 2024 was a unilateral notification of a decision already made, that no document in the Respondent's bundle bears his signature consenting to any extension, and that the provision would be rendered nugatory if an employer could, months after probation lapsed and after a harassment complaint had been lodged against the reviewing supervisor, backdate and impose a fresh probationary regime. 73 On discrimination and hostile working environment, the Claimant submitted that his EthicsPoint complaint of 2 nd September 2024 particularized, with dates, instances in which his supervisor told him that she regretted hiring him and that he was a thorn in her flesh on 31 st July 2024, and threatened to fire him over the sharing of a document with the VP Global Programs on 19 th August 2024, and that the complaint was supported by two audio recordings. Page 19 of 38

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74 It is the Claimant’s submission that the Respondent has at no point denied the authenticity of the recordings or the words attributed to the supervisor, and that a general plea putting him to strict proof is no answer to contemporaneous recorded evidence that has been in the Respondent's possession since 2nd September 2024. 75 The Claimant submitted that the Respondent's reliance on its thirty-day resolution window does not assist it. The window did not excuse the Respondent from taking interim, protective or investigatory steps where the complaint concerned ongoing threats by his direct supervisor; that the case record discloses no investigation, no interview, no variation of reporting lines and no substantive communication in the twenty-five days before his resignation; that his follow-up of 11 th September 2024, informing the Respondent that he had sought professional therapy, elicited no response; and that the only activity during the period was the probation review form created on 23rd September 2024, which made no reference to the pending complaint against the very supervisor conducting the review. 76 He further submitted that the evidence of Patrick N. Boro was generic and did not relate to his complaint, while Christine Kinya Beta did not depose to any investigation or remedial step, her evidence being confined to the performance narrative. Page 20 of 38

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77 On constructive dismissal, the Claimant submitted that the doctrine falls within unfair termination under Section 45 of the Employment Atiagaga v Act, relying David [2015] KEELRC 75 (KLR), on Nathan Engineering where it was Ogada Limited held that: "constructive dismissal occurs when an employee resigns because their employer's behaviour has become so intolerable or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is, in effect, a termination." 78 He argued that the elements are made out: the repeated demeaning and threatening statements by his supervisor, coupled with complaint, the failure constitute a to investigate fundamental his formal breach and intolerable conditions; his resignation letter expressly attributes his exit to ongoing harassment that led to depression for which he was receiving treatment; and the complaint, follow-up and psychiatric sick sheets of 13 th and 20th September 2024 form an unbroken chain linking his resignation to the unaddressed conduct. 79 The Claimant submitted that he did not resign impulsively but exhausted reasonable alternatives by using the Respondent's own grievance channel, following up and seeking medical attention, and resigned only after twentyfive days of silence. He added that no disciplinary process Page 21 of 38

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under Chapter 4.3 of the Respondent's HR Manual had been commenced against him, foreclosing any suggestion that he resigned to pre-empt discipline. 80 In the further alternative, he argued that as a confirmed employee, his purported non-confirmation and the deterioration of his working conditions amounted to unfair termination under Section 45, the Respondent having shown no valid reason under Section 43 nor accorded him the hearing under Section 41. 81 The Claimant submitted that the defence is unsustainable; as the allegations of poor performance and maligning his supervisor are not supported by any Performance Improvement Plan, warning or other step under the progressive discipline procedure at Chapter 4.3.2 of the Respondent's HR Manual, which requires counselling, documented warnings and an opportunity to respond. 82 He submitted that the Respondent's contention that it could not act while he was on sick leave ignores that his sick leave began eleven days after the complaint, during which no action was equally taken, and that the leave was itself a consequence of the harassment. 83 He further submitted that the work-from-home arrangements cited by the Respondent were organizationwide measures with no bearing on its handling of his Page 22 of 38

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individual complaint, and that the unclean hands particulars were matters that ought to have been dealt with through the disciplinary process during his employment and cannot be deployed retrospectively. 84 In response to the Respondent's submissions, the Claimant accepted the repudiatory breach test in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR) but submitted that the Respondent failed to apply it to its own conduct, namely the supervisor's persistent threatening conduct supported by unchallenged recordings, the total inaction on his complaint, and the backdating of probation documents by the subject of the complaint while he was on sick leave, which together go to the root of trust and confidence. 85 The Claimant argued that Chege v Timsales Ltd [2025] KECA 1660 (KLR) is inapplicable as he was not facing any disciplinary process, and that what he sought to escape was harassment and a retaliatory probation extension, not discipline. He submitted that Kihara v Almasi Bottlers Limited & another [2025] KECA 1893 (KLR) supports his case, the causal link being documented in his resignation letter, medical sheets and complaint. 86 It is the Claimant’s submission that the thirty-day window conflates procedural timelines with the substantive duty to Page 23 of 38

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maintain a harassment-free workplace, and that the Respondent cannot invoke his medically certified absence, caused by the very conduct complained of, both to justify its inaction and as evidence of bad faith. 87 He submitted that it was the Respondent, through twentyfive days of inaction, that rendered the process a hollow formality. On Ondiba v Egerton [2014] KEIC 1197 (KLR), he argued University that the requirements set out therein, that the employee be advised of the expected standards, the duration of the extension be clearly set out and the employee be given an opportunity to make representations, were not followed, and that the Respondent has not explained the 23 rd September 2024 creation date of the review form. He urged the Court to draw the inference that the sequence of the complaint, the backdated review and the extension letter, all by the supervisor complained against, describes a retaliatory response rather than a pre-existing performance exercise. 88 The Claimant submitted that while Article 41 of the Constitution creates mutual obligations and preserves the employer's right to manage performance, his right to fair labour practices is not contingent on awaiting an internal process in which the employer has taken no meaningful step, and retaliatory conduct cannot be immunized by labelling it performance management. Page 24 of 38

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89 On the reliefs, the Claimant distinguished Transparency International - Kenya v Omondi [2023] KECA 174 (KLR) on the basis that he had been confirmed by operation of law and that the decision concerned non-renewal rather than constructive dismissal mid-term, and therefore submitted that he is entitled to the balance of salary for the unexpired term on the doctrine of legitimate expectation. He argued that, not being a probationer, his notice entitlement is governed by Section 35 of the Employment Act and not Section 42(4), and that the Respondent cannot engineer the conditions compelling him to leave without notice and then fault him for not giving it. 90 On discrimination, he submitted that his claim is not confined to the protected grounds under Section 5 of the Employment Act or Article 27 of the Constitution but extends to the creation of a hostile working environment and the resulting psychological anguish, which the Court may remedy under Section 12(3)(vii) of the Employment and Labour Relations Court Act. He maintained that the Kshs. 138,273.60 paid comprised only prorated final dues and does not extinguish his claims. 91 On the evidence at the hearing, the Claimant submitted that the Respondent's witnesses established only the existence of procedures and not their application to his Page 25 of 38

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complaint, and that neither explained the creation date of the review form, addressed the recordings or challenged his medical certificates. 92 He submitted that the EthicsPoint complaint was itself the mechanism of communicating his allegations; that the sick sheets signed by a consultant psychiatrist are medical documents in evidence and were unchallenged; and that a demand letter issued before resignation, which he denied, would only demonstrate deliberateness rather than impulsiveness. He urged the Court to find that he was a confirmed employee who was constructively and unfairly dismissed, and to allow his claim as prayed, with costs and interest. Respondent’s Submissions 93 The Respondent identified three issues for determination, namely whether the Claimant's resignation of 27 th September 2024 amounted to constructive, wrongful and unfair dismissal or was a voluntary, self-engineered separation; whether the Respondent subjected the Claimant to unfair labour practices or failed to address his grievances in breach of the Constitution, the Employment Act and its Human Resources Manual; and whether the Claimant is entitled to the reliefs sought. 94 The Respondent submitted that the evidence at the hearing undermines the Claimant's case. It argued that in Page 26 of 38

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cross-examination, the Claimant conceded that he had no proof that his allegations were communicated to the Respondent before his EthicsPoint complaint of 2nd September 2024; that his sick sheets do not disclose any ailment and he has no medical report linking any condition to his work; that he stopped reporting to work from 13th September 2024 and never returned; that he later returned to the Respondent's premises for a celebration; and that his demand letter was issued before his resignation. It submitted that its witnesses demonstrated that it maintained a clear grievance framework under its HR Manual and the EthicsPoint mechanism, under which complaints were to be investigated and resolved within thirty days. 95 On the first issue, the Respondent submitted that the Claimant's resignation was a calculated, pre-emptive manoeuvre designed to evade performance accountability during a validly extended probation period. It argued that the burden lies on the employee to prove a fundamental breach going to the root of the contract, and relied on Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), where the Court of Appeal adopted the dictum of Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] ICR 222 that:"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer Page 27 of 38

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intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed." 96 It submitted that the Court of Appeal in that case adopted the narrower contractual test, which requires an objective assessment of whether the employer's conduct amounted to a repudiatory breach, proof of a causal link between that conduct and the resignation, that the employee did not acquiesce in the breach, and that the burden of proof rests on the employee. It contended that a resignation triggered by a desire to avoid lawful disciplinary or performance management processes cannot mutate into constructive dismissal, as the doctrine requires a fundamental breach by the employer and not the lawful execution of supervisory mandates. 97 The Respondent submitted that the extension of the Claimant's probation was lawful under Section 42 of the Employment Act, which recognizes probation as a tool for assessing an employee's suitability. The Claimant's appraisal was, owing to his paternity leave, conducted on 19th July 2024 and documented that he was struggling across key performance indicators and required extensive managerial hand-holding; that rather than terminating his services as it was entitled to do under Section 42(1), it Page 28 of 38

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extended his probation by three months on 24th September 2024 to afford him an opportunity to improve; and that such an extension is a standard managerial action incapable of amounting to a fundamental breach. 98 In support thereof, it cited Ondiba v Egerton University [2014] KEIC 1197 (KLR), where the Court held that: "A probationary employee is one who has a conditional contract. That is the continuation of the contract is conditional on whether the employees' work performance during the probation period shows that he is able to carry out the work properly. While this defines the purpose of the probationary period, it does not mean the employer has a free hand to fire the subject employee if the employer feels the employee performance is unsatisfactory. The employer is allowed to extend the probation period in order to further assess the employee's performance." 99 It was further submitted that the chronology reveals that the resignation was intended to pre-empt a performance evaluation scheduled for 30th September 2024. The Respondent argued that the review of 29th August 2024 confirmed that the Claimant's performance remained stagnant and that he had maligned his supervisor to coworkers, and that on 2nd September 2024 he defaulted on an international deployment, falsely asserting that his visa Page 29 of 38

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had not been issued when it had been received on 30 th August 2024. 100 It submitted that rather than present himself for review, he resigned with immediate effect while on sick leave, and relied on Chege v Timsales Ltd [2025] KECA 1660 (KLR), where the Court of Appeal held that: "An employee cannot escape a disciplinary process by tendering a resignation or a retirement 'with immediate effect.' There exists nothing like 'resignation with immediate effect' in the employment context unless the employer waives the notice period." 101 The Respondent submitted that the voluntary nature of the exit is further demonstrated by the Claimant's failure to give the one week's notice required of a probationary employee under Section 42 of the Employment Act and its HR Manual, which breach it overlooked in its acceptance letter of 30th September 2024 merely to facilitate an orderly exit. It argued that an employee who walks out without notice and without affording the employer an opportunity to address his grievances, outside of immediate physical danger, makes a unilateral decision to end the relationship on his own terms. 102 To fortify its position, the Respondent cited Kihara v Almasi Bottlers Limited & another [2025] KECA 1893 (KLR), where the Court of Appeal, Page 30 of 38

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reiterating the principles in Ligaga, held that: "The key test... is whether the employer's conduct amounted to a repudiatory breach going to the root of the contract, thereby rendering continued employment intolerable." 103 It submitted that the Claimant has not established any of the elements of constructive dismissal, the extension of probation, scheduling of a review and provision of an improvement plan being standard administrative procedures undertaken in good faith. 104 The Respondent further submitted that the Claimant, having invoked the EthicsPoint mechanism, ought reasonably to have awaited the outcome of the process he initiated. 105 It submitted that between lodging the complaint and resigning he was away from the workplace and cannot credibly allege fresh acts of mistreatment in that period, and invited the Court to consider what intervening conduct could have warranted immediate resignation. It contended that the Claimant had already engaged counsel and issued a demand letter before resigning, from which the inference is that he pre-judged the outcome of the investigation and resigned in anticipation of an outcome rather than in response to one, the Respondent not having rejected or declined to investigate his complaint. Page 31 of 38

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106 On the second issue, the Respondent submitted that the right to fair labour practices under Article 41(1) of the Constitution does not shield an employee from workplace discipline, performance management or administrative inquiry, but creates mutual obligations requiring both parties to act in good faith. It argued that a supervisor's insistence on accountability, delivery timelines and attendance to international missions cannot be mutated into an unfair labour practice, and that Article 41, while safeguarding employees against arbitrary and oppressive conduct, preserves the employer's right to manage its operations and demand performance. 107 The Respondent submitted that by lodging his complaint, which it described as anonymous, through the EthicsPoint Platform, the Claimant became bound by the rules of that mechanism, under which Chapter 14 of its HR Manual allocates thirty days to log, investigate, interview and determine a complaint. It maintained that the Claimant resigned twenty-five days into that window, thereby shortcircuiting the process five days before it lapsed, and that an employee who unilaterally aborts a grievance process before its stipulated timeline cannot complain of the employer's failure to address the grievance, as a litigant cannot self-induce the frustration of an administrative track and then hold the employer liable. Page 32 of 38

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108 It was further submitted that the Respondent's failure to conclude investigative interviews was occasioned by the Claimant's own health status, he having presented medical sheets on 13th September 2024 certifying him unfit for work. The Respondent argued that under Section 30 of the Employment Act, an employee on certified sick leave is protected to facilitate rest and recovery, and that its HR and compliance units properly suspended all inquiries, as compelling an incapacitated employee to attend hearings, reviews or interviews would itself have been an unfair labour practice. 109 It submitted that by presenting sick sheets and later resigning from his sickbed, the Claimant blocked any administrative intervention and cannot fault the Respondent for failing to investigate during a period when the law forbade engaging him. 110 On reliefs, the Respondent submitted that the claim for the balance of salary for the unexpired term is untenable, as a fixed-term contract containing a probationary clause does not guarantee tenure from inception, and the Claimant's retention remained contingent on a final reassessment scheduled for October 2024. It relied on Transparency International - Kenya v Omondi [2023] KECA 174 (KLR), where the Court of Appeal held that a fixed-term contract does not create a legitimate expectation of renewal, and argued that legitimate Page 33 of 38

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expectation cannot override the express terms of a contract subjecting tenure to probation. It further submitted that having voluntarily resigned, the Claimant cannot demand payment for twenty months of service he did not render. 111 The Respondent argued that the claim for twelve months' compensation under Section 49 of the Employment Act is unavailable, the separation being a voluntary resignation. On notice, it submitted that the Claimant was a probationer under an active extension and was entitled only to the notice under Section 42(4), which provides that: "A party to a contract for a probationary period may terminate the contract by giving not less than seven days' notice of termination of the contract, or by payment, by the employer to the employee, of seven days' wages in lieu of notice." 112 It argued that it was the Claimant who breached this requirement by resigning with immediate effect, and he cannot demand payment for notice he failed to give. 113 On discrimination, the Respondent submitted that under Section 5 of the Employment Act and Article 27 of the Constitution, a claim for discrimination must be specifically pleaded and strictly proved by identifying a protected ground and demonstrating less favourable treatment than other employees Page 34 of 38 in identical

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circumstances on that ground. It argued that the supervisor's actions were based on objective performance evaluations and documented operational defaults, including the missed deployment of 2 nd September 2024, and that demanding performance, adherence to deadlines and official travel schedules is legitimate managerial oversight which must not be confused with discrimination. 114 The Respondent submitted that it discharged its postemployment obligations under Sections 35 and 51 of the Employment Act by tabulating the Claimant's prorated final dues of Kshs. 138,273.60 and issuing a Certificate of Service dated 15th October 2024, both of which were received by his advocates on 9 th January 2025, leaving no outstanding claims between the parties. 115 It is the Respondent’s submission that the suit is an attempt by an underperforming employee who walked away to avoid an impending performance evaluation to obtain a financial payout, that it acted at all times with patience, transparency and in compliance with the law and its HR Manual, and it urged the Court to dismiss the claim with costs. 116 I have examined all the evidence and submissions of the parties. The claimant has contended that he was constructively terminated by the respondent who failed to consider his complaint against environment leading him to resign. Page 35 of 38 the hostile work

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117 The claimant testified in this court and when crossexamined over any evidence that he had made oral complaints, he admitted that he had none. He also admitted that he resigned on 27 th September 2024 and so could not be called for a meeting and the veracity of his complaint tested. 118 He aver that he lodged his complaint while on leave and resigned before returning to the office. He averred that his resignation letter was accompanied by his counsel’s letter asserting constructive dismissal. 119 In the evidence of the respondent, it was indicated on the claimant’s sick sheet that he needed 7 days sick off because of harassment at work. From this evidence despite the claimant averring that he was discriminated against he did not explain circumstances of the discrimination. 120 It is also evident that he had indeed made a complaint about the work situation but the matter could not have been concluded because the claimant resigned while still on sick off. It would indeed have been impracticable to continue and summon him back to work to complete the inquiry and having resigned before the inquiry was made and while on sick off, he could not fault the respondents as for failing to do an inquiry on his complaint. Page 36 of 38

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121 The claimant also averred that his probationary period was extended after the period of confirmation had passed and so he was to be permanent and pensionable. 122 It is indeed true that by the time the respondent were purporting to extend the claimant’s probation period when he was already in the confirmation period and any purported extension was null and void. That said and done there is no prayer sought by the claimant concerning confirmation in employment after the probation period. 123 Having found that there is no proof that there was a correlation between the claimant’s resignation and harassment at work, the claim for compensation for constructive termination cannot stand. 124 In the same vein, the claimant’s prayer to be paid salary for the reminder of the contract period cannot stand because he is considered to have resigned on his own volition. 125 Having found as above, the only remedy available for the claimant is for payment of leave earned and not taken which is for the period between 1/4/2024 to 27 th September 2024 which is 6 months = 1/2x456,046=kshs 228,023/-. 126 I also direct that the claimant be issued with his certificate of service. There shall be no order of costs. Page 37 of 38

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Dated, Signed and Delivered virtually at Nairobi this 7th Day of October 2026. HELLEN WASILWA JUDGE Page 38 of 38

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