TITLE:

Constructive dismissal: A critical analysis of its

legal perspective in Kenya

NAME: Okechi Dennis Chiruba

EMAIL: okechidennis7@gmail.com

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TABLE OF CONTENTS PAGE

Preface……………………………………………………………………………………….. …..3

Abstract……………………………………………………………………………………….......4

Introduction……………………………………………………………………………………….5

What is constructive dismissal? ..............................................................................................8

Grounds for a claim of constructive dismissal………………………………………………8

The burden of proof…………………………………………………………………………10

Kenyan Legal Framework………………………………………………………………………..11

Background…………………………………… …………………………………….11

Definition……………………………………… …………………………………....12

The Substantive elements………………………………………………...……………...13

Comparative analysis with other jurisdictions…………………………………………………...17

South Africa………………………………………………………………………………....17

United Kingdom……………………………………………………………………………..21

Conclusion…………………………………………………………………………………….....23

Recommendation………………………………………………………………………………...24

Bibliography……………………………………………………………………………………..25

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PREFACE

This research paper is a result of a clinical externship exercise carried out at Kenya Tea

Development Agency (KTDA) in the months of June/July, 2014 in fulfilment of part of my

course LPR-400 courtesy of the Kenyatta University School of Law.

The herein discussed topic; Constructive Dismissal: A critical analysis of its legal perspective in

Kenya arose out of my daily tasks and case analysis in the said company.

My acknowledgement and sincere gratitude to my supervisor, the Manager, Legal and

Regulatory Affairs, Ms Florence Mitey and the Principle Legal officer Ms Caroline Mukiira for

their invaluable assistance , guidance and legal opinions that aided in the achievement of this

noble quest.

Okechi Dennis

………………

September, 2014

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Abstract

This paper delves into the surfeit of issues presented by employment and labour law matters of

unfair dismissal and specifically the doctrine of constructive dismissal. The doctrine is common

in the recent case laws in Kenya despite the fact that there are no provisions that specifically

provide for it. However the courts, by means of the common law, are keen to define and interpret

this doctrine thereby granting remedies to the aggrieved parties.

The paper analyses the few cases encountered during my internship at KTDA in conjunction with

other cases determined in Kenya and the legal reasoning for the decision made. The research

paper continues to note the special characteristics a claim for constructive dismissal carries

which are unique from the usual unfair terminations stipulated for by section 45 of the

Employment Act 2007. The burden of proof and the nature of such proof for a successful claim

are also here in discussed.

The same is analysed comparatively with other jurisdictions such as the United Kingdom and

South Africa and how they have defined, interpreted and applied this principle in their industrial

court cases.

In the end, the paper gives an elaborate conclusion and recommendations that should be adopted

by legislators in Kenya to adequately shelter this principle in the Labour and Employment Laws

of Kenya.

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Introduction

Kenya Tea Development Agency Holdings Limited (hereafter ‘KTDA’) is a public company

registered under the Companies Act Cap 486 Laws of Kenya. Being a holding company, it owns

sixty four factory companies distributed all over Kenya tea growing zones. Though the factory

companies are independently managed, the agency rights have been bestowed on KTDA. This

grants it the overall management role in the tea sector in Kenya.

Being a huge management umbrella, it is incumbent that it employs thousands of employees 1 in

its headquarters at Nairobi and its subsidiary companies. They all make up a conglomerate of

employees, and for a society to survive, it must have order, and for order to exist, there must be

law; The Employment Act 2007, inter alia2.

These laws guide and bind the employer3 and employee in crucial matters of employment

relationship i.e. hiring of employees, protection of wages, rights and duties of each party in

employment and the most sensitive of it all; termination and dismissal.

Provisions on termination and dismissal of employees are well stipulated in Part VI of the

Employment Act 2007. Ranging from section 35 which requires the employer to issue a

termination notice of not less than the period at which payment of salary or wages is given, inter

alia, to section 51 which mandates the employer to furnish an employee who has been in service

1
“a person employed for wages or a salary and includes an apprentice and indentured learner” Section 2,
Employment Act 2007 Laws of Kenya
2
The Labour Relations Act 2007 and the Work Injury Benefits Act 2007
3
“any person, public body, firm, corporation or company who or which has entered into a contract of service to
employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm,
corporation or company” Ibid
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for more than four weeks consecutive, with a certificate of service indicating the position of

employment, duties carried out and the duration worked4.

The provisions on summary dismissal5 and unfair termination6 of employment have had the

greatest of courts’ attention as most of the cases filed in court are based on such claims7.

Majority of these cases8 revolve around claims; that no notice of termination was issued9,

claimant trade union not being informed of intention to declare the claimant redundant10, no one

month salary in lieu of notice was paid11, no severance pay given and no certificate of service

issued12. All these circumvent part VI on termination and dismissal requirements.

Apart from the above common labour law case scenarios, there is one unique case scenario that

is quite different from the usual unfair dismissals; a claim of constructive dismissal. I

encountered the case of Rose Naliaka Okoko v. KTDA &Another13 while carrying out my

regular duties as a legal intern at KTDA. It formed the basis of my research.

The claimant in the above case was employed in 2001 as a seasonal worker in the sorting

department of the respondent company14. He continued working until the introduction of

contracts in November 2011. The terms and conditions of employment then changed from oral to

written, with an understanding that the contract will be renewed regularly with a basic salary of

4
Section 51 (2) Employment Act 2007
5
Section 44Employment Act 2007
6
Ibid, Section 45
7
Jerono Johana v. Chebut Tea Factory, Ind. Crt at Nakuru Cause No. 120 of 2014, Nyaata Makori v. Kiamokama
Tea Factory, Ksm Ind. Crt Cause No. 142 of 2013
8
Flomena Jemutai v. Chebut Tea Factory, Ind. Crt at Nakuru Cause No. 294 of 2014
9
Section 35 Employment Act 2007
10
Ibid, Section 35
11
Ibid, Section 36
12
Ibid, Section 51
13
Cause No. 779 of 2014. Industrial Court of Kenya
14
Kambaa Tea Factory
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Ksh 15, 579.80. The claimant continued working diligently until the 14th day of June 2014 when

the management of the respondents company unilaterally changed the terms of employment and

reduced the daily rate from Ksh. 616.00 to ksh. 250.00.

The claimant appealed against the unlawful deduction of her salary verbally to her line manager

but no action was taken. The claimant’s grievance was again communicated to the respondent

through the claimant’s lawyer but despite the efforts made to have the respondent satisfy his

action, it proved futile.

The respondents did not give any reason for the reduction of salary and subsequent dismissal.

The claimant resigned afterwards and filed a claim for damages in court.

Before the case was determined by the court, the counsel for the respondent advised his client15

that it was highly probable that the courts would find for the claimant. The respondent’s act of

unilateral reduction of salary without notice or justification constituted a constructive dismissal.

The case was settled out of court in favour of the claimant who was then awarded damages by

the respondent.

What is constructive dismissal? What does is it specifically entail? To whom is the burden of

proof? What does he or she need to prove? What remedies does the claimant have upon

successful claim? What is the legal perspective of this principle in Kenya compared to other

jurisdictions? This research paper delves into the above legal issues comprehensibly

15
the respondent, Kambaa Tea Factory

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What is constructive dismissal?

Constructive dismissal is also referred to as constructive discharge. It is defined in the Black’s

Law Dictionary16 as ‘a termination of employment brought about by the employer making the

employee's working conditions so intolerable that the employee feels compelled to leave.’

The precise legal penalties for constructive dismissal differ from state to state, but normally a

constructive dismissal leads to the employee's responsibilities ending and him acquiring the right

to make claims against the employer.

Grounds for a claim of constructive dismissal

From the above definition of constructive dismissal, the inference for the main common law

facets for establishing constructive dismissal are as follows (Steven L. Willborn, 2012) (Dawn

Bennett-Alexander, 2008)17;

a. The employer making a unilateral alteration or breach of the employment contract

to the detriment of the employee

Before an employee is absorbed into a workstation, he or she is expected to sign an employment

contract that provides for the terms and conditions upon which the employee will work. This

forms part of the laws and regulations that bind both parties to the contract. The employer is not

16
9th Edition

17
Mark A. Rothstein et al, Employment Law 9.7, at pg 539 (1994)

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supposed to alter any of the employment terms without sufficient notice and consent from the

employee.

Such alteration is a breach of the essential elements of the employment contract and a detriment

to the employee. It thus necessitates the employee to rescind the contract and make a claim of

constructive dismissal.

Such breaches that have been found to be actionable in common law include; deliberate cuts in

pay18 or demotion of status, persistent delayed wages, refusal of holiday or leave as stipulated in

the employment contract19, withdrawal of car20, suspension without pay21and dramatic changes

to duties and hours of work22.

Upon commission of the above breaches of the employment terms and conditions, an employee

has a right to and should resign immediately and seek damages for constructive dismissal.

b. The employer making or otherwise permitting the working conditions of the

employee to be so intolerable for him to continue working.

An employee may resign upon commission of acts or conduct or permission of such conduct by

the employer that makes the working conditions of the employee to be intolerable for him to

continue working (Dawn-Alexander, 2008).

18
Cantor Fitzgerald International v Callaghan [1999] ICR 639
19
Lytlarch Ltd v Reid [1991] ICR 216, Sec. 10 (3a) Employment Act Laws of Kenya
20
Triton Oliver (Special Products) Ltd v Bromage (EAT 709/91) IDS Brief 511
21
William Hill Organisation Ltd v Tucker [1999] ICR 291
22
Sec. 27 Employment Act Laws of Kenya
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Examples of such behaviour that are actionable in common law include; ignoring complaints

from employees23, persistent unwanted amorous advances24, verbal abuse and bullying.

Other breaches include behavior which is arbitrary, capricious, inequitable, and intolerable or

outside good industrial practice25 and conduct that undermines trust and confidence.

The Burden of Proof

Unlike the usual unfair termination cases where the employer is required to prove to court the

reasons for termination and that the termination was fair and just26, constructive dismissal centres

the burden of proof on the claimant/employee to establish that his resignation was infact

necessitated by either the employer’s unilateral change of the employment contract to the

detriment of the employee or the actions of the employer that makes the employee’s working

conditions so intolerable.

In the United States, the California Supreme Court defined constructive discharge in the case of

Turner v. Anheuser-Busch, Inc.27 as follows: "In order to establish a constructive discharge, an

employee must plead and prove, by the usual preponderance of the evidence, that the employer

either intentionally created or knowingly permitted working conditions that were so intolerable

or aggravated at the time of the employee's resignation that a reasonable employer would realize

that a reasonable person in the employee's position would be compelled to resign."

23
Goolds v McConnell [1995] IRLR 516
24
Sec.6 Employment Act Laws of Kenya
25
Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666
26
Section 43, The Employment Act 2007
27
Cal. Supreme Court 4th 1238, 1251, 876 P.2d 1022 (1994)
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From the above definition, it can be deduced that the burden of establishing constructive

dismissal is on the employee. It is not the onus of the employer to establish that the resignation

was not in any way attributed to his actions, but the onus is on the employee to prove that the

employer either intentionally created or knowingly permitted working conditions that were so

intolerable at the time of the employee’s resignation.

THE KENYAN LEGAL FRAMEWORK

 Background

The doctrine of constructive dismissal has not been given an express statutory recognition in

Kenyan laws. But this does not mean that such case scenarios are not heard and determined in

Kenyan courts. Justice Radido Stephen in the case of Anthony Mkala Chitavi v Malindi Water

& Sewerage Company Ltd28 stated that “the doctrine and principles developed in other

comparative jurisdictions would be equally applicable here because of the entrenchment of a

justiciable right to fair labour practices under Article 41 of the Constitution of Kenya and the

need to interpret the Constitution in a manner that advances human rights and fundamental

freedoms in the Bill of Rights and the doctrine that the Constitution is always speaking.”

The courts in Kenya have always stood guided by the precedent cases29 of common law

jurisdictions in both defining the doctrine and developing the precepts for making rulings on

matters of such claims.

28
Cause No. 64 of 2012 (Originally Nairobi Cause No. 754(N) OF 2009
29
Western Excavating (ECC) Ltd v Sharp (1978) IRLR 27 CA
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  Definition

The definition of this doctrine has been derived from precedents of other global jurisdictions.

Justice Radido Stephen, while making his ruling in the case of Anthony Mkala Chitavi v

Malindi Water & Sewerage Company Ltd30 defined constructive dismissal making reference to

the South African case of Pretoria Society for the Care of the Retarded v Loots31 as ‘a situation

in the workplace, which has been created by the employer, and which renders the continuation of

the employment relationship intolerable for the employee to such an extent that the employee has

no other option available but to resign.’

The above definition was reiterated by Mbaru J in the case of Emmanuel Mutisya Solomon v.

Agility Logistics32 which now serves as a common precedent in most Kenyan cases33 in defining

the term and laying the principal elements that constitute constructive dismissal.

The elements that give rise to constructive dismissal such as, sexual harassment 34, denial of

holiday or leave35, subjection to long hours of work without pay36, have explicitly been

prohibited by the Employment Act 2007.

Nevertheless, no law has provided for involuntary resignation with or without notice dictated

solely on the commission of such acts by the employer and if in any case the employee can claim

remedy after resignation.

30
Cause No. 64 of 2012 (Originally Nairobi Cause No. 754(N) OF 2009
31
[1997] 6 BLLR 721
32
(Industrial Court Cause No 1448 of 2011)
33
Duncan Obiero Obiero v Fairview Hotel Limited [2014] eKLR, Peter Omare Nyangesera v Registered Trustees of
Impala Club [2013] eKLR, Benuel Mariera v Awanad Enterprises Ltd [2014] eKLR
34
Sec. 6 The Employment Act 2007 Laws of Kenya
35
Sec. 10, Ibid
36
Sec. 27
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Substantive elements of constructive dismissal -Kenya

 The burden of proof

The burden of proof on the principle of constructive dismissal has not deviated from the labour

and employment statutory law requirement. The main issue for determination in a claim of

constructive dismissal is whether the employee or claimant has established the elements that

constitute constructive dismissal.

Section 47(5) of the Employment Act, 2007 provides that: For any complaint of unfair

termination of employment or wrongful dismissal, the burden of proving that an unfair

termination of employment or wrongful dismissal has occurred shall rest on the employee, while

the burden of justifying the grounds for the termination of employment or wrongful dismissal

shall rest on the employer. This thus leaves the onus of proofing constructive dismissal on the

claimant.

The above section was quoted and reiterated expressly in the case of Michael Nthenge v. Kenya

Aurotech Ltd37 where the claimant failed to prove to the court that the charge of stealing by

servant labeled against him and a later acquittal amounted to constructive dismissal.

 Constructive dismissal in relation to contract law

Constructive dismissal has its ancestries in the law of contract under the doctrine of ‘discharge

by breach’. Under this doctrine, an employee is entitled to treat himself as discharged from any

37
Cause No 711 of 2012

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further performance of his obligations where the employer’s conduct is a significant breach

going to the root of the contract. The termination would be due to the employers conduct. Such

conduct may include unilateral reduction in pay or failure to pay the employee 38.

Acts of an employer which are in breach of the employment contract may be treated as

constructive dismissal by the employee. For example, indefinite suspension of an employee

without pay is in breach of standard employment contracts.

 Indefinite suspension without pay

Indefinite suspension without pay may justify the suspended employee to consider himself

constructively dismissed. In the case of Peter Omare Nyangesera v Registered Trustees of

Impala Club39 The Claimant was employed by the Respondent on 1 January 2009 on a one year

fixed contract set to expire on 31 December 2009, as a bar supervisor. On 23 April 2009 the

Claimant was suspended on allegations of theft of money amounting to Kshs 92,000/- of which

he disputed. The Claimant was arrested but not charged and remained on indefinite suspension

up to the time of the lapse of the contract.

The Claimant asserted that the suspension was in breach of the contract and therefore he was

constructively dismissed. The Claimant sought unpaid salary for the balance of the contract and

two months’ salary in lieu of notice. The Respondent did not show any written notice he gave to

the Claimant of his intention to dismiss him or of the dismissal letter itself.

38
Radido J. in the case of Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd [2013] eKLR

39
Cause No. 834 of 2009. Ind. Court at Nairobi
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Radido J in determining whether the particular set of facts presented before the Court constituted

a repudiatory breach of contract by the employer to entitle the Claimant to claim constructive

dismissal, quoted the case of Western Excavating (ECC) Ltd v Sharp40 which set out the general

principles of constructive dismissal. The Claimant was suspended indefinitely without pay, and

neither was the suspension letter presented before Court. He was arrested but was not charged by

the Police.

Under the above circumstances, the court found that the employer had rendered the continuation

of the employment relationship intolerable and thus the employee was justified to consider

himself constructively dismissed and thus entitled to the claim.

The same reasoning was taken in the case of Benuel Mariera v Awanad Enterprises Ltd41 where

the claimant was given a suspension letter and instructed to surrender the company property

including company car and telephone line. Though he was promised payment, he never received

any nor was he communicated about his status despite his efforts to find out.

In the judgment, Linnet Ndolo LJ stated the following, “It is trite law that when an employer by

action or omission materially breaches the contract or otherwise makes it impossible for an

employee to perform his part of the contract of employment, the contract is deemed to have been

constructively terminated by the employer. In this case failure to pay salary during the

suspension as promised and failing to communicate with the claimant were enough reasons for a

40
(1978) IRLR 27 CA
41
Cause No. 191 of 2013. Ind Crt at Mombasa

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reasonable employee to believe that his services had been terminated. The indefinite suspension

of the claimant without pay or communication amounted to constructive dismissal.”

 Failure to allocate duties and refusal to pay salary

Even though an employee has not been suspended, failure to allocate duties and pay salaries to

him amounts to constructive dismissal. In the case of Boniface Nyaga Njiru v Board of Trustee

Gichugu Water & Sanitation Trust42, the claimant was employed as a plumber in the respondent

company in January 2005. In September 2012, the respondent stopped allocating duties to him

and his salary was also terminated. There was also evidence which indicated that the respondent

brought other persons to perform his duties.

The court reiterated the fact that employment relationships are contracts like any other hence are

governed by principles of law of contract. The claimants in this case alleged that the respondent

by his conduct repudiated the contract of employment between them and the respondent. In the

context of employment relationship, the claimants therefore asserted that they were

constructively dismissed by the respondent.

Constructive dismissal being an unlawful termination of employment in circumstances where the

employee leaves without express act or proclamation of 'dismissal' by the employer, it would be

therefore justified for the claimant to treat himself as constructively dismissed and hence within

law to make a claim for unfair termination.

42
[2014] eKLR

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  Conclusion

It is therefore evident from the determination of the above case laws that constructive dismissal,

though well developed and applied in Kenya, is not founded on any statutory law. It is a

constantly developing concept that delves its analysis and determination from judicial precedents

as a fundamental source of the legal principles43 that aid in determining claims of such nature.

COMPARATIVE ANALYSIS WITH OTHER JURISDICTIONS

1. SOUTH AFRICA

The principle of Constructive dismissal in South Africa is already in a developed phase

compared to Kenya. This principle, just like the other unfair dismissals has been clothed in their

statutory legal framework44. The right to fair labour practices has also been provided for in the

constitution45.

The Labour Relations Act No. 6 of 199546 has clearly provided for the meaning of constructive

dismissal in the definition of a dismissal. Section 186(10) (e) defines dismissal as “when an

employee terminates a contract of employment with or without notice because the employer

made continued employment intolerable for the employee”

43
This principles are obtained case precedents for example in Catherine Kinyany Vs MCL Saatchi & Saatchi [2013]
eKLR, Maureen Onyango J held that:“ For a claim of constructive dismissal to succeed, the Claimant must show
that the Respondent acted in a way that made it extremely hard for the Claimant to continue working.”
44
The Labour Relations Act No. 6 of 1995
45
Section 23(1) Constitution of the Republic of South Africa No. 108 of 1996
46
As amended by the Labour Relations Act No. 42 & 66 of 1996, No. 127 of 1998 and No. 12 of 2002
Page | - 17 -
Elements of Constructive dismissal -South Africa

 Resignation

The phrase ‘employee terminates a contract with or without notice’ as used in the above

definition refers to the act of resigning being ‘a termination with notice’ and the act of the

employee considering himself constructively dismissed being ‘a termination without notice’.

47
In the South African case of Pretoria Society for the Care of the Retarded v Loots the

honorable judge reiterated the first test in establishing constructive dismissal which is, whether,

when resigning, there was no other motive for resignation, denoting that the employee would

have continued the employment relationship indefinitely had it not been for the employer’s

intolerable conduct.

The judge continued to state that when any employee resigns and claims constructive dismissal,

he is in fact affirming that under the intolerable situation created by the employer, he can no

longer continue to work, and has construed that the employer's behavior amounts to a repudiation

of the employment contract.

In Watt v Honeydew Dairies (Pty) Ltd48 the commission handling the case emphasized the

difficulties faced by any employee who anticipates bringing a claim of constructive dismissal.

They stated as follows, "It is submitted that an employee bears a considerable risk in the case of

constructive dismissal. In the first place, one of the requirements of a constructive dismissal is

47
[1997] 6 BLLR 721 (LAC),
48
(2003) 24 ILJ 466 (CCMA)

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that the employee must resign. This in turn means that if such employee is unable to show the

requisite conditions that render continued employment intolerable, then that resignation remains

valid."

Resignation should be the only reasonable option for a claim of constructive dismissal to

succeed; however, it need not be the employee’s only option. In Coetzer v The Citizen

Newspaper49, and also the case of Kruger v CCMA & Another50, it was echoed that constructive

dismissal is to be determined objectively and that resignation must be the last resort.

 The burden of proof

Section 192(1)51 provides that, “In any proceedings concerning any dismissal, the employee must

establish the existence of the dismissal”. The term ‘any’ refers to all types of dismissals, and

since the definition of the term ‘dismissal’ incorporated the meaning of constructive dismissal;

the section applies to it too.

It is therefore imperative that the employee must prove that the employer was actually

responsible for introducing, enhancing or permitting an intolerable condition and also ascertain

that there was no other way of resolving the dispute except for resignation or otherwise

constructing that he has been dismissed52. The onus is not for the employer (respondent) to show

that he did not introduce any intolerable condition but fully on the employee to prove that fact

(Claassen, 2014).

49
(2003) 24 ILJ 662 (CCMA)
50
(2002) 11 BLLR 1081 (LC)
51
The Labour Relations Act No. 6 of 1995, South Africa
52
Jooste v Transnet Ltd t/a South African Airways
Page | - 19 -
Voluntary resignation of an employee, merely to avoid appearing at the disciplinary process,

may not necessarily constitute constructive dismissal (Claassen, 2014). However it may

constitute constructive dismissal if the employer has threated an employee to resign or face

disciplinary proceedings. It will also amount to constructive dismissal if the employer may have

followed unfair disciplinary process.53

 Remedies

Section 193 of the Labour Relations Act provides that if the Labour Court finds that a dismissal

is unfair, it may (a) order the employer to reinstate the employee from any date not earlier than

the date of dismissal; (b) order the employer to re-employ the employee, either in the work in

which the employee was employed before the dismissal or in other reasonably suitable work on

any terms and from any date not earlier than the date of dismissal; or (c) order the employer to

pay compensation to the employee.

The Court, for example, in the case of a dismissal that constitutes an act of discrimination, may

wish to issue an order obliging the employer to stop the discriminatory practice in addition to any

one of the other remedies it may wish to grant.

 Limit of compensation

The Labour Relations Act sets up a ceiling upon which the court may award a successful

claimant. Section 194 states that compensation awarded to an employee whose dismissal is found

to be unfair either because the employer did not prove that the reason for dismissal was a fair

53
http://www.labourguide.co.za/constructive-dismissal Accessed on 16th September 2014
Page | - 20 -
reason relating to the employee’s conduct or capacity or the employer’s operational requirements

or the employer did not follow a fair procedure, or both, must be just and equitable in all the

circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated

at the employee’s rate of remuneration on the date of dismissal.

2. UNITED KINGDOM

In the United Kingdom law, the principle of constructive dismissal was first given statutory

clothing by The Redundancy Payments Act 1965, later in the Trade Unions and Labour Relations

Act, 1974 and currently in the Employment Rights Act 1996.

Constructive dismissal is defined in section 95 (1) (c) of the Act. It states that “an employee

terminates the contract under which he is employed (with or without notice) in circumstances in

which he is entitled to terminate it without notice by reason of the employer's conduct.”

The right of an employee not to be unfairly dismissed is provided by Section 94 (1) of the same

Act. The Department of Trade and Industry54 also stated that ‘a tribunal may rule that an

employee who resigns because of conduct by his or her employer has been 'constructively

dismissed'. For a tribunal to rule in this way the employer's action has to be such that it can be

regarded as a significant breach of the employment contract indicating that he or she intends to

no longer to be bound by one or more terms of the contract.’

 Categories of constructive dismissal

In the United Kingdom, constructive dismissal has been classified into two types;

54
Formed in 1970, replaced in June 2007
Page | - 21 -
  Statutory; in which the requirement is that the employer’s conduct makes the employee

to terminate the contract without notice55

 Common law; when the employer’s serious breach causes the employee to construe

himself terminated by resigning56.

Notable Elements

 The employee must resign quickly

Once the employer has made or permitted the working conditions of the employee to be

intolerable or breached a fundamental element of the employment contract, the employee must

resign within a reasonable period of time (Krupat, 2014). If the employee continues working for

a considerable long period of time after the breach and does not protests while working, he will

be considered to have acquiesced and thus waived his right to resign and a claim for constructive

dismissal57.

 Giving notice

If the employer’s breach is serious enough, the employee is entitled to resign without notice

(Hamilton Howell, 2014). However, giving of notice prevents the employer from alleging that

the resignation was caused by a job offer58. It also ensures that the employee is paid his

remuneration during the notice period.

55
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221
56
Official text of Section 95(1)c of the Employment Rights Act 1996
57
Lewis v Motorworld Garages Ltd [1986] ICR 157
58
Official text of Section 139(1) of the Employment Rights Act 1996
Page | - 22 -
CONCLUSION

The principle of constructive dismissal being a unique type of unfair dismissal has developed

gradually in labour and employment matters in various jurisdictions. We have noted that in all

the jurisdictions discussed, the novelty of this principle has gained its standing from the common

law setting.

With the regular use and adoption of these common law precedents, some jurisdictions 59 have

taken the bold step of clothing it nicely in their respective statutory legal framework. However,

here in Kenya, the source of law for this principle still remains stare decisis from common law

and local case laws60.

As much as I appreciate the utilization of stare decisis to determine the cases, situations and facts

that were unforeseen by our legislators during the drafting of the Employment and Labour laws,

the continued use of these precedents without a definite statutory law will not effective in the

long run.

Under case laws, courts may be tempted to behave myopically and neglect the fine details of

each specific case. Courts are not always bound by a specific precedent; they thus can flexibly

elude the application of certain principles without much uproar. This improperly grants the courts

the forbidden authority to make laws (Lucas Andaerlini, August 2008).

59
United Kingdom, South Africa, Canada
60
Emmanuel Mutisya Solomon v. Agility Logistics(Industrial Court Cause No 1448 of 2011)

Page | - 23 -
The flexibility of case laws gives the court the complete discretion to either take the tough or

weak decisions. If a bad decision is made, especially by a higher court, it perpetuates the

application of such weak decision.

RECOMMENDATION

In matters concerning the doctrine of constructive dismissal in Kenya, the determination of

which relies on the use of precedents, it is imminent that the challenges that face the use of stare

decisis as a source of law will befall the determination of cases that require the application of this

principle.

Giving statutory clothing to the doctrine of constructive dismissal is the best available solution to

ensure proper determination of such matters. The courts will be committed and bound to define

and apply this principle as provided by the written law. The threat of bias by the court in

determination of such matters will thus be completely eliminated.

In conclusion, it is my recommendation that legislators in Kenya should emulate other global

jurisdictions discussed, inter alia and take the noble bold step of giving statutory clothing to the

doctrine of constructive dismissal.

Page | - 24 -
BIBLIOGRAPHY

1. CASE LAWS

Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd Cause No. 64 of 2012

Benuel Mariera v Awanad Enterprises Ltd Cause No. 191 of 2013. Ind Crt at Mombasa

Boniface Nyaga Njiru v Board of Trustee Gichugu Water & Sanitation Trust [2014] eKLR

Cantor Fitzgerald International v Callaghan [1999] ICR 639

Duncan Obiero Obiero v Fairview Hotel Limited [2014] eKLR,

Emmanuel Mutisya Solomon v. Agility Logistics(Industrial Court Cause No 1448 of 2011)

Flomena Jemutai v. Chebut Tea Factory, Ind. Crt at Nakuru Cause No. 294 of 2014

Jerono Johana v. Chebut Tea Factory, Ind. Crt at Nakuru Cause No. 120 of 2014,

Lewis v Motorworld Garages Ltd [1986] ICR 157

Michael Nthenge v. Kenya Aurotech Ltd Cause No 711 of 2012

Nyaata Makori v. Kiamokama Tea Factory, Ksm Ind. Crt Cause No. 142 of 2013

Peter Omare Nyangesera v Registered Trustees of Impala Club Cause No. 834 of 2009

Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721

Rose Naliaka Okoko v. KTDA &Another Cause No. 779 of 2014. Industrial Court of Kenya

Triton Oliver (Special Products) Ltd v Bromage

Watt v Honeydew Dairies (Pty) Ltd (2003) 24 ILJ 466 (CCMA)

Western Excavating (ECC) Ltd v Sharp [1978] ICR 221

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 2. LEGAL DOCUMENTS

1. Kenya

 The Constitution of Kenya, 2010

 The Employment Act No. 11 of 2007

2. South Africa

 The Constitution of the Republic of South Africa No. 108 of 1996

 The Labour Relations Act No. 66 of 1995 (as amended)

3. United Kingdom

 Trade Union and Labour Relations (Consolidation) Act 1992

 Employment Rights Act 1996

BOOKS, ARTICLES & MISCELLANEOUS

Claassen, A. (2014). The South African Labour Guide. Retrieved September 5, 2014, from
http://www.labourguide.co.za/constructive-dismissal

Dawn Bennett-Alexander, L. H. (2008). Employment Law for Business.

Hamilton Howell, B. G. (2014, June). Employment Lawyers. Retrieved from http://hhbg.ca/info-

sheet.html

Krupat, K. A. (2014, March 18). Constructively dismissed employee not required to return to
work.

Krupath, K. A. (2013, November 27). Forced Sick leave: Is it constructive dismissal.

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Lucas Andaerlini, L. F. (August 2008). Statute Law or Case Law?

Reporting, N. C. (2014). Case Search. Retrieved september 2014, from Kenya Law:
www.kenyalaw.org

Steven L. Willborn, S. J. ( 2012). Employment Law: Cases and Materials. January.

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