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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 2138 (KLR)

Otieno v Rhs Freight Services (K) Ltd (Cause 490 of 2019) [2024] KEELRC 2138 (KLR)

Employment and Labour Relations Court
31 July 2024
LNLinnet Ndolo
2,079 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer who quietly made an employee's working life unbearable to force her resignation constructively dismissed her, awarding six months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 15th October 2015 as Assistant Manager, Customer Service, learnt on 21st January 2019 while on medical leave that her employment had been terminated on account of redundancy through social media. Following her advocate's intervention, the termination was recalled on 8th February 2019 and she resumed work on 25th February 2019. Upon resumption, she complained that she was made to sit on a walkway despite having just undergone major surgery, her email address and computer features were disabled, and she was forced to share a general email address with a junior colleague. She resigned on 21st March 2019, stating she had been forced out, and claimed Kshs 1,980,000 as compensation for constructive dismissal, severance pay, compensation for emotional distress and a certificate of service. The Respondent maintained that she resigned voluntarily. Applying the principles in Coca Cola East & Central Africa Limited v Maria Kagai Lugaga and Western Excavating ECC Ltd v Sharp, the court found that the Respondent's actions - relocating her without credible explanation, disabling her email, and raising performance concerns without affording her a hearing - amounted to a deliberate scheme to frustrate her out of employment after a failed termination bid. The court held the Claimant proved constructive dismissal and awarded six months' salary (Kshs 990,000) as compensation, with interest, a certificate of service, and costs. Judgment was delivered virtually at Nairobi on 31st July 2024 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Claimant proved constructive dismissal

Holding

Yes - the court found the Respondent deliberately frustrated the Claimant into resigning after a failed attempt to terminate her employment.

Reasoning

Applying the Coca Cola v Maria Kagai Lugaga principles and Western Excavating v Sharp, the court found the Respondent's actions - moving the Claimant to a walkway after major surgery, disabling her email and computer features without credible explanation, and raising performance concerns without giving her a chance to respond - amounted to conduct intended to force her resignation. The decisions were unsupported by credible explanation and evidenced a scheme to frustrate her out of employment.

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02

Whether the Claimant was entitled to the remedies sought

Holding

Partially - six months' salary (Kshs 990,000) in compensation for constructive dismissal, plus certificate of service, interest and costs; other heads claimed were not awarded.

Reasoning

In awarding compensation, the court took into account the Claimant's length of service and the Respondent's mishandling of her case, including an unlawful termination, a reluctant reinstatement and lack of support upon resumption of work. The court did not award the 12 months' salary sought, severance pay, or damages for emotional distress.

p. 5

Legal principles established

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  • Constructive dismissal occurs where an employer forces an employee to leave employment by reason of conduct that makes the employment environment so hostile that the employee has no choice but to leave; it may also be inferred from a fundamental breach of the employment contract.
  • An employer who covertly frustrates an employee out of employment after a failed termination bid engages in constructive dismissal, and the burden of proving such repudiatory breach lies on the employee but is discharged where the evidence supports it.

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs 990,000 being 6 months' salary in compensation for constructive dismissal
  2. 2.Interest on the award at court rates from the date of judgment until payment in full
  3. 3.The Claimant to be issued with a certificate of service
  4. 4.The Claimant awarded costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute (Memorandum of Claim dated 8th July 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Otieno v Rhs Freight Services (K) Ltd (Cause 490 of 2019) [2024] KEELRC 2138 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2138/eng@2024-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.