What Amounts to Constructive Dismissal?
Constructive dismissal occurs when an employer makes the working environment so intolerable that an employee feels compelled to resign. Although the employer does not formally dismiss the employee, the resignation is legally treated as a dismissal due to the employer’s actions.
While Kenya’s Employment Act, 2007 does not explicitly define constructive dismissal, it is recognized under Section 45 as a form of unfair termination. It is also supported by Article 41(1) of the Constitution, which guarantees fair labour practices, and has been developed through judicial precedent by the Employment and Labour Relations Court (ELRC).
To prove constructive dismissal, an employee must demonstrate that the employer fundamentally breached the employment contract. The legal standard focuses on whether the employer’s conduct amounted to a repudiatory breach, even if not intentional or in bad faith.
Key Elements Required to Establish Constructive Dismissal
- Intolerable Working Conditions: The environment must be objectively unbearable for a reasonable person. This includes extreme treatment or harassment.
- Repudiatory Breach of Contract: The employer must have seriously breached either an express or implied term of the contract.
- Causal Link: There must be a direct connection between the employer’s conduct and the resignation. The breach must be the effective reason for resigning.
- Resignation Within Reasonable Time: The employee must resign soon after the breach. Delayed resignation may imply acceptance of the conduct. Notice is optional if the conduct was the effective reason for leaving.
The burden of proof lies with the employee to show that:
- The resignation was justified due to the employer’s breach.
- The breach made continued employment impossible or unreasonable.
- The employer made a fundamental change to the contract, and the employee resigned because the conduct would not stop.
Examples of Conduct Amounting to Constructive Dismissal
- Frequent relocations without assigning work, resulting in professional redundancy.
- Inadequate support, failure to handle grievances, emotional distress, or harassment.
- Victimization or being sent home due to co-workers’ absence without justification.
- Ignoring medical reports and failing to accommodate disabilities, creating discriminatory conditions.
- Suspension or dismissal under misleading grounds after creating a hostile environment.
Key Case Examples
1. Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (KECA 394):
The employer frequently relocated the employee without providing any work. The court ruled that this created an intolerable working environment and amounted to a repudiatory breach of the employment contract.
2. Leena Apparels (EPZ) Ltd v Nyevu Juma Ndokolani (KECA 308):
The employer sent the employee home due to co-workers’ absence—an issue outside her control. The court found this materially altered her contract and constituted constructive dismissal.
3. Gichuru v Package Insurance Brokers Ltd (KESC 12):
The Supreme Court held that the employee was constructively dismissed due to disability-based discrimination. Despite formal dismissal for incompetence, the employer’s actions leading up to it created an intolerable environment.
Conclusion
Constructive dismissal is a valid legal claim in Kenya when the employer’s conduct breaches fundamental terms of the contract and forces the employee to resign. Employees should gather strong evidence and consult a legal expert to file a claim properly.
Disclaimer: This information is provided for general purposes only and does not constitute legal advice. For case-specific guidance, consult a qualified legal professional in Kenya.
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