Picture this, you walk into the workplace each day, but instead of feeling valued, you’re suffocated by an atmosphere of hostility and unreasonable demands. Your employer’s actions are so oppressive that leaving seems like the only escape from an unbearable situation. This is the essence of constructive dismissal, a legal concept that transforms your resignation from a personal choice into a forced departure, stemming from your employer’s intolerable conduct which are essentially actions that unfairly make the workplace difficult for an employee, compelling them to leave.
Understanding Constructive Dismissal in Kenya
A significant case that sheds light on constructive dismissal in Kenya is Nathan Ogada Atiagaga v. David Engineering Limited (2015) where the court defined constructive dismissal as occurring when an employee resigns due to the employer’s intolerable behavior, effectively equating it to a termination.
It is important to note that for a claim to succeed, the resignation must occur within a reasonable timeframe due to the employer’s hostile treatment, without any indication of the employer’s desire to terminate.
Common elements of Constructive Dismissal in Kenya usually include, among other things, unilaterally altering employment terms without consent, non-payment or delay of salary, indefinite suspensions without pay, excessive workload without reasonable compensation, discrimination and mistreatment.
When an employee properly files a suit for constructive dismissal, the courts have so far shown little –to-no hesitation to award remedies. In the case of D.K. Njagi Marete v. Teachers Service Commission (2013), the court emphasized that remedies should be proportionate to the economic injuries suffered, aiming to correct the employee’s economic loss rather than enriching them unjustly.
Available Remedies of Constructive Dismissal
According to Section 49 of the Employment Act 2007, employees constructively dismissed may be entitled to:
- Wages: Compensation for what the employee would have earned had proper notice been given.
- Proportionate Wages: Payment for any outstanding wages for time worked if dismissal occurred before the end of a pay period.
- Loss Compensation: Payment for other losses incurred from the time of dismissal until the notice period ended.
- Capped Salary Payment: Equivalent salary for a set number of months, capped at twelve months.
- Reinstatement: Reinstatement: The court may order the employee to be reinstated, meaning they return to work as though the dismissal had not occurred. However, reinstatement is not automatic. Under Section 49 of the Employment Act, the court must consider several factors before making such an order. These factors include the practicability of reinstatement based on the circumstances of the dismissal, the relationship between the employee and employer and whether it has deteriorated to a point where reinstatement would no longer be viable, the lapse of time between the dismissal and the court decision. As per Section 12(3)(vii) of the Employment and Labour Relations Court Act, the Court has the authority to order the reinstatement of any employee within three years of dismissal, subject to conditions it deems fit under circumstances outlined in any written law.
Assessing Constructive Dismissal Claims
To determine constructive dismissal, courts apply specific principles, as illustrated in the landmark case of Coca-Cola East and Central Africa Limited v. Maria Kagai Ligaga (2015). The court established key factors, including:
- Contractual Terms: Identifying fundamental terms of the employment contract.
- Repudiatory Breach: Evaluating if the employer’s conduct constituted a serious breach.
- Causation: Establishing a clear link between the employer’s actions and the employee’s resignation.
- Timeliness: Ensuring the resignation occurs promptly after the breach.
At F.M. Muteti & Company Advocates, we understand the intricacies of constructive dismissal and have a proven track record of successfully representing clients in such cases. Our dedicated team provides personalized legal guidance, ensuring that you are informed and empowered throughout the process. Contact us today to schedule a consultation and let us help you navigate the complexities of employment law to secure the compensation you deserve.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please consult a qualified legal professional. F.M. Muteti & Company Advocates is here to assist you with your legal needs.
