Tongola v Flamingo Horticulture Kenya Limited (Employment and Labour Relations Cause 779 of 2019) [2024] KEELRC 1323 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant has proved a case of constructive dismissal on a balance of probabilities
- 2.Whether the claimant is entitled to the reliefs sought
Key legal issues
#Whether the claimant was constructively dismissed
Yes - the MD's violent and humiliating conduct on 14/1/2019 went to the root of the contract and amounted to a repudiatory breach; the resignation was not voluntary
The MD, the claimant's ultimate supervisor, physically confronted the claimant, snatched his phone and laptop and ordered him from the premises. The MD did not attend hearing to controvert this evidence, leaving one uncontroverted side of the story. HR only learned of the grievance on receipt of the resignation letter, so no grievance procedure had been invoked. Applying the objective test from Coca Cola, the conduct was a fundamental breach; the resignation was involuntary and the dismissal unlawful and unfair under sections 36, 41, 43 and 45 of the Employment Act.
Whether the claimant's consultancy for ISDA amounted to a conflict of interest defeating the claim
No - the conflict of interest issue was raised by the respondent only after separation and is moot
The respondent first raised the consultancy breach after the claimant had resigned, and it was never a live issue between the parties before the resignation. It therefore could not found a defence to the constructive dismissal claim.
Entitlement to compensation quantum
Two months' salary awarded as compensation under section 49, plus notice pay and leave days
The claimant served only six months; he had already been awarded three months' notice pay and other terminal benefits, and failed to collect the certificate of service and dues. He lost career prospects and did not contribute to the dismissal. The court considered these section 49 factors and awarded the equivalent of two months' salary, Kshs.800,000.
Legal principles established
#- The burden of proving constructive dismissal lies on the employee who alleges it
- Employer conduct that goes to the root of the employment contract constitutes repudiatory breach amounting to constructive dismissal, assessed objectively
- Compensation for unlawful dismissal is confined to section 49 of the Employment Act, and exemplary damages are not awarded in addition
Court orders
#- 1.Kshs.1,200,000 in lieu of three months' notice
- 2.Kshs.42,560 in lieu of 3.2 leave days not taken
- 3.Kshs.800,000 being two months' compensation for unlawful constructive dismissal
- 4.Interest at court rates from date of judgment till payment in full
- 5.Costs of the suit to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment and labour relations dispute)
Relief refused
#Gratuity
Not demonstrated to be contractually due; claimant was confirmed and pensionable
NSSF and NHIF clearance
Not substantiated
Medical allowance compensation
Special damage not specifically proved
Exemplary/aggregated damages
Not appropriate in addition to statutory compensation absent proved human rights violation
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the final analysis judgment is entered in favour of the claimant against the respondent as follows: a. Kshs.1,200,000 in lieu of three months' notice. b. Kshs.42,560/= in lieu of 3.2 leave days not taken. c. Kshs.800,000/= being two months' compensation for unlawful constructive dismissal
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.
The court is of the considered view that the conduct by the MD towards the claimant on 14/4/2019 is a matter that went to the root of the contract of employment between the claimant and the respondent.
It is not appropriate to award exemplary or aggravated damages in addition to the award of compensation or general damages on the same finding of unlawful and unfair dismissal.
The constructive dismissal of the claimant was unlawful and unfair.
Issues in the judgment
#Internal date inconsistency on the MD's conduct - the incident occurred on 14/1/2019 but the determination refers to 14/4/2019
Case number and formal case title not stated anywhere in the judgment text provided
Inconsistent figures for accumulated leave days - RW1 credited 2.3 leave days in evidence but 3.2 days at the close of testimony, and the court awarded for 3.2 days
Notice pay described as 'three months' salary in the sum of Kshs.1,200,000' although the gross pay is stated elsewhere as Kshs.400,000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tongola v Flamingo Horticulture Kenya Limited (Employment and Labour Relations Cause 779 of 2019) [2024] KEELRC 1323 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1323/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.