The Employment and Labour Relations Court in Mombasa has ruled that an employee who resigns can still be considered unfairly dismissed when an employer’s conduct makes continued employment intolerable, awarding a claimant Ksh5.9 million in compensation.

🇰🇪 Breaking It Down

In a judgment document obtained by Kenyans.co.ke , the court found that a former branch manager was constructively dismissed after a prolonged breakdown in the employment relationship.

The dispute arose after the employee complained of public humiliation, an unexplained change in reporting lines, disciplinary action issued without a hearing, and repeated failure by management to address her grievances.

“Constructive dismissal is not a term appearing, ipso facto, in the text of the Employment Act, 2007. It is a doctrine of judicial construction, imported into our labour jurisprudence to address the reality that an employer can engineer an employee’s departure just as effectively by conduct as by a signed letter of termination, and that the law would fail in its purpose if it allowed an employer to escape the consequences of an unfair dismissal merely by ensuring that the employee, rather than the employer, spoke the words of departure,” the judgement read.

📌 What You Need to Know

The ruling means that an employee’s resignation does not automatically shield an employer from liability where workplace conduct has effectively pushed them out.

According to the court, an employer’s intention to make an employee resign is not necessary where its conduct objectively makes the continued working relationship untenable.

The employee had repeatedly raised concerns and sought intervention before eventually resigning, and the court found that this conduct did not amount to accepting or tolerating the treatment.

The court considered the events cited by the employee collectively, explaining that they did not have to be viewed in isolation because their cumulative effect could destroy the trust and confidence essential to an employment relationship.

It held that constructive dismissal can arise from a series of workplace actions even where no single incident is serious enough on its own to force an employee out.

However, the judgment clarified that an employee carries the burden of proving constructive dismissal, though credible testimony supported by timely workplace records can be sufficient even when other employees are not called as witnesses.

📰 Source: Kenyans.co.ke