Halima Rahma Yassin v Green String Network

i. Compensation for constructive dismissal equivalent to twelve (12) months’ basic salary. Kshs. 3,600,000/- ii. Payment of withheld salaries for 10 months at 150,000/- per month from September 2021-June 2022. Kshs. 1,778,219/- iii. Reimbursement of medical expenses incurred in Chiromo Medical Centre and Quran Centre. Kshs. 429,514/- iv. Severance pay at the rate of 15 days per year worked as per Clause 9 of the Employment Contract. Kshs. 591,780/- v. Unpaid 12 leave days accrued but not taken. Kshs. 118,356/- vi. One (1) month’s salary in lieu of notice. Kshs. 300,000/- vii. Reimbursement of fees paid at NGO Coordination Board Kshs. 4,000/- Total Claim Kshs. 6,821,870/- 2. The Claimant’s claim was accompanied by her list of witnesses dated 23 rd September 2022; witness statement of even date; and list and bundle of documents of even date. 3. In response to the claim, the Respondent entered an appearance through the law firm of Kiamba and Siboe Advocates, and filed a memorandum of defence dated 16 th November 2022. In support of their response, the Respondent filed a witness statement of ANGELA YODER MAINA dated 15th March 2024. 4. To counter the Respondent’s case, the Claimant filed a Reply dated 19th June 2023. Hearing and evidence JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 2 | 32

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5. The entire hearing of both parties was before Justice Nderi Nduma (as he then was). The parties agreed that I would rely on the typed proceedings and write the judgment. The claimant’s case was heard on 12th March 2025, when the claimant testified as CW1 and adopted her witness statement dated 23rd September 2022 as evidence in chief. The claimant produced her documents listed in the list of documents dated 23rd September 2023 as C-exhibits 1-18. She was crossexamined by counsel for the respondent. 6. The respondent’s case was heard on 6th October 2025. RW1 was Angi Yonder-Maina, founder and executive director of the respondent. RW1 presented her witness statement dated 15th March 2024 as her evidence in chief and was cross-examined by the Claimant's counsel. The Claimant’s case in summary 7. The Claimant’s case is that she was employed by the Respondent vide a Contract of Employment dated 15th February 2017 as a Data Analysis Consultant at an agreed annual wage of Kshs. 3,375,000.00 payable in equal monthly instalments. Upon the expiry of the initial consultancy agreement, the Claimant was retained by the Respondent as a Monitoring and Evaluation Manager on a permanent and pensionable basis vide an employment contract dated 9th August 2018 and at an agreed monthly salary of Kshs. 300,000/-. Further, under Clause 8 and 9 of the Employment Contract, she was entitled to a health insurance cover, WIBA benefits, an annual salary increment, and severance pay at the rate of 15 days for every year worked. 8. The Claimant’s grievance is that in the year 2020, she did not receive her monthly salary for a duration of 5 months, but the payments were later made in September 2021 without any apology or explanation as to the delays. Further, beginning in September 2021, the Respondent arbitrarily JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 3 | 32

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withheld and/or reduced the Claimant’s salary by 50% without any justification, while other employees continued receiving their full salaries at the end of each month. In November 2021, the Claimant’s medical insurance cover was also withdrawn without prior notice. The Claimant particularises her irregular salary payments as follows: Month Time of payment Paid Gross Salary (Kshs) Outstanding Gross Salary (Kshs) Sept 2021 04/10/2021 150,000/- 150,000/- Oct 2021 06/12/2021 150,000/- 150,000/- Nov 2021 10/12/2021 150,000/- 150,000/- Dec 2021 31/12/2021 150,000/- 150,000/- Jan 2022 04/02/2022 150,000/- 150,000/- Feb 2022 04/04/2022 150,000/- 150,000/- Mar 2022 30/06/2022 150,000/- 150,000/- Apr 2022 Not paid 0 300,000/- May 2022 Not paid 0 300,000/- 0 128,219/- June 2022 (13 days) Not paid Total Outstanding Gross Salary 1,778,219/-. 9. It is the Claimant’s case that she put her best foot forward in all her assigned duties and often worked overtime without pay. However, due to poor working conditions, her physical and mental health deteriorated, forcing her to seek treatment and psychological guidance and counselling at Quran Centre. Further, on 09th May 2022, the Claimant was hospitalised at Chiromo Lane Medical Centre to receive JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 4 | 32

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additional treatment and returned home after 8 days to continue treatment and counselling at Quran Centre. From 30th May 2022, she visited Chiromo Lane Medical Centre for follow-ups and was informed of her improved health condition, but was advised to rest and avoid stressful situations. The Claimant emphasises that she covered the medical costs incurred at Chiromo Lane Medical Centre and Quran Centre, which amounted to Kshs. 279,515 and Kshs. 150,000 respectively, since the medical cover had been withdrawn. In a medical report dated 14th September 2022, the Claimant’s doctor, Dr. Eric Njuguna of Chiromo Lane Medical Centre, confirmed that episodes of irritability, fatigue, insomnia, restlessness, difficulty concentrating and worry were triggered by stress at work. Nonetheless, on or about 3rd May 2022, while she was still undergoing medical treatment, the Respondent's Executive Director, Angela Yoder-Maina, continued to send messages on WhatsApp, pressuring her to submit her resignation letter. 10. The Claimant asserts that due to the pressure, force, coercion and insistence of the Respondent’s Executive Director, the Claimant subsequently handed in her resignation letter via email on 13 th June 2022. The Claimant states that the conduct of the Respondent amounted to constructive dismissal. 11. The Claimant further faults the Respondent for failing to accord the Claimant one month's notice or pay her one (1) month's salary in lieu of notice prior to constructive dismissal; and for failing to pay her terminal dues, including the unlawfully withheld salaries for 10 months amounting to Kshs. 1,778,219/and the medical expenses of Kshs. 429,515/- incurred at Chiromo Lane Medical Centre and Quran Centre, after the constructive dismissal. Respondent’s case in brief JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 5 | 32

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12. The Respondent admits that they engaged the Claimant for 5 years, initially on a consultancy basis from 15th February 2017 to 31st March 2018, and later via an employment contract whose term was from 1st July 2018 to 30th June 2019. The said contract was subsequently renewed up to 30th June 2022. The Claimant’s salary was Kshs.300,000/- per month. 13. It is averred that as a Non-Governmental Organisation, the Respondent relies on donor funding for its daily operations and payment of staff salaries. After COVID-19, around September 2021, the Respondent suffered financial difficulties which resulted in a reduction of staff salaries by 50% from September 2021 to June 2022. Staff were encouraged to accept part-time work or deal with the organisation closing with no payments. 14. The Respondent stated that the Claimant began working part-time from October 2021 and was able to attend her university classes even when in the office. It is averred that the Claimant resigned and stopped reporting to work on 3rd May 2022 and also stopped receiving work calls, responding to work e-mails, and carrying out any duties related to the organization without notice. On 13th June 2022, the Claimant handed in an official resignation letter and demanded payment of alleged sums owed to her. It was discovered that she had not completed any work on three evaluation projects assigned to her prior to her resignation. 15. While the Respondent admits that it stopped offering health insurance to its staff, it explains that this was due to a lack of funding. However, it emphasises that it continued to remit NHIF deductions on behalf of its staff. It highlights that the Claimant did not complete and submit any sick leave forms during the periods when she purportedly received treatment, and therefore denies owing the Claimant any reimbursement for medical bills incurred. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 6 | 32

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16. On the other remedies sought, the Respondent denies owing the Claimant any vacation pay, and instead avers that she owes the Respondent 8 vacation days. 17. The Respondent denies that it unfairly terminated the Claimant's employment and states that she resigned without notice and without submitting any work assigned to her. DETERMINATION 18. The parties filed written submissions after close of the Respondent’s case. Issues for determination 19. The claimant addressed the following issues in submissionsa. Whether the Claimant was constructively dismissed by the Respondent. b. Whether the Claimant is entitled to the reliefs sought in the Claim. 20. Conversely, the respondent addressed the following issuesa) Whether the Claimant was unfairly terminated / constructively dismissed. b) Whether the Respondent is liable for alleged salary arrears and medical claims c) Whether the Claimant is entitled to the reliefs sought. 21. The court found parties are in consensus on the issues to be determined in the suit to be – a. Whether the Claimant was constructively dismissed by the Respondent. b. Whether the Claimant is entitled to the reliefs sought in the Claim. The relevant applicable law and burden of proof JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 7 | 32

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22. Section 47(5) of the Employment Act provides for the manner of proving employment claims as follows‘47(5)For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’ 23. The burden of proof is that of balance of probabilities. 24. The fairness of termination is as stated in section 45(2) of the Employment Act to wit ‘A termination of employment by an employer is unfair if the employer fails to prove— (a)that the reason for the termination is valid; (b)that the reason for the termination is a fair reason— (i)related to the employees conduct, capacity or compatibility; or (ii)based on the operational requirements of the employer; and (c)that the employment was terminated in accordance with fair procedure.’ Whether the Claimant was constructively dismissed by the Respondent. The claimant’s submissions 25. The Black's Law Dictionary (9th Edition) defines constructive dismissal as "A termination of employment brought about by the employer making the employee's working conditions so intolerable that the employee feels compelled to leave". See the case of Milton M Isanya v Aga Khan Hospital Kisumu [2017] KEELRC 571 (KLR). JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 8 | 32

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26. In the case of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KЕCA 394 (KLR), the Court of Appeal gave a binding guidance on constructive dismissal as follows; - What is the key element and test to determine if constructive dismissal has taken place? The factual circumstances giving rise to constructive dismissal are varied. The key element in the definition of constructive dismissal is that the employee must have been entitled or have the right to leave without notice because of the employer's conduct. Entitled to leave has two interpretations which gives rise to the test to be applied. The first interpretation is that the employee could leave when the employer's behavior towards him was so unreasonable that he could not be expected to stay this is the unreasonable test. The second interpretation is that the employer's conduct is so grave that it constituted a repudiatory breach of the contract of employment - this is the contractual test. The Court of Appeal in the above Coca Cola East case (supra) further summarized the principles for constructive dismissal as follows; - The legal principles relevant to determining constructive dismissal include the following: ‘What are the fundamental or essential terms of the contract of employment? Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer? The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. An objective test is to be applied in evaluating the employer's conduct. There must be a causal link between the employer's conduct and the reason for employee terminating the contract i.e. causation must be proved. An employee may leave with or without notice so long as the employer's conduct is the effective reason for termination. The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 9 | 32

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employment relationship pursuant to the breach. The burden to prove repudiatory breach or constructive dismissal is on the employee." 27. Facts giving rise to repudiatory breach or constructive dismissal are varied. At paragraph 36 of its judge in the above Coca Cola East case (supra) the Court of Appeal held as follows; "...In constructive dismissal, the issue is primarily the conduct of the employer and not the conduct of employee – unless waiver, estoppel or acquiescence is in issue. Conduct by an immediate superior or supervisor may be enough to justify constructive dismissal. (See Hilton Industrial Hotels (UK) Ltd. -v- Protopapа [1990] ILR 316). An employer is required not to behave in a way that amounts to a repudiatory breach of contract...As we have observed above, in dealing with constructive dismissal, it is the conduct of the employer that is in issue and not the conduct of the employee; by ignoring to address the legal consequences of the conduct of the appellant, as an employer, the submissions by the appellant relating to the respondent's conduct were thus directed at an issue that is not pertinent in determining whether the facts disclosed constructive dismissal..." 28. Further, in the case of Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited [2014] eKLR, Rika J. expressed himself on the concept as follows: The conduct by the employer must be shown to be so intolerable that it made it considerably difficult for the employee to continue working. At the heart of constructive dismissal is breach of the duty of trust and confidence. The employer's behaviour must be shown to have destroyed or seriously undermined trust and confidence. In the English Employment Rights Act 1996 and the South African Labour Relations Act Number 66 of 1995, constructive dismissal occurs when an employee terminates the contract JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 10 | 32

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under which he is employed, with or without notice, in circumstances which he is entitled to terminate it without notice, by reason of the employer's conduct. 29. Similarly, the Respondent's conduct amounts to breach and repudiation of contract, which ultimately let the Claimant involuntary resigning upon insistent demand or coercion by Angela Yonder – Maina who asked her to submit a resignation letter. The following factors and/or conduct by the Respondent resulted to constructive dismissal of the Claimant. First, Clause 4 of the employment contract clearly stated that the Claimant's consolidated salary of Kshs. 300,000 was payable at the end of age month less all the statutory deductions and taxes. The contract did not provide the Respondent the liberty to deduct or withhold salaries. 30. Further, Clause 14 states that in case of any changes, the other party must be notified in accordance with the law. Further, section 17 of the Employment Act provides that employer must pay the full salary of the employee for work done in pursuance of the contract of service and section 19 of Employment Act prescribed permissible provision to reduction of salary and this current pay cut is not one of them. Additionally, section 10(5) of the Employment Act provides that change of terms of employment shall be affected by the employer in consultation with the employee. Additionally, in the case of Gathondeka v Attorney General & another (Cause 983 of 2014) [2023] KEELRC 859 (KLR) (5 April 2023) (Judgment), the Court held that "...According to employment Law an employer should not reduce the terms of the employee to the disadvantage of the employee without the consent of the employee..." 31. However, the Respondent unlawfully and unprocedurally withheld 50% of the Claimant's salary for the months of September, November, December 2021 and January, February and March 2022. The months of April, May and June 2022 were completely unpaid. The total unpaid salary is Kshs. 1,778,219. The Respondent did not offer any explanation, justification or notice as required JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 11 | 32

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in the employment contract. This conduct of withholding salaries is therefore breach of contract and/or repudiation of contract. Further, due to the unexplained withholding of salaries compounded with extremely long working hours without compensation for extra hours put in, the Claimant's physical and physiological health deteriorated. She was hospitalized in Quaran Centre and later at Chiromo Lane Medical Centre. She was advised to take rest and avoid stressful situations. 32. The foregoing is confirmed by the medical report dated 14th September 2022, Chiromo Lane Medical Centre confirmed that the Claimant's health conditions was attributed to the stress at work in the following terms. This position is also confirmed by the discharge summary at page 14 of the bundle of documents; - "...She was admitted at Chiromo Hospital Group on the 9th for inpatient care after she was presented to us with irritability, fatigue, insomnia, feeling stressless, difficulty concentrating and worry. The episode was triggered by stress at work..." (see page 46 of the Claimant's bundle of documents) Further, clause 8 of the employment contract entitled the Claimant to health insurance cover. However, the Respondent terminated and/or did not renew the Claimant's medical insurance cover in November 2021. As a result, the Claimant medical costs amount to Kshs. 279,515 to Chiromo Lane Medical Centre and Kshs. 150,000 to Quaran Centre, which she now claims reimbursement from the Respondent. (see pages 15 to 19 of the Claimant's Bundle of Documents). 33. Additionally, the various correspondences between the Claimant and Respondent's director, Angela Yonder - Maina, clearly shows that the Claimant was under stress and pressure arising from the Respondent's conduct. The Claimant clearly informed the Respondent's director that the unlawfully withholding of salaries was affecting her financially. That she was unable to effect JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 12 | 32

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pay her medical bills. All these correspondences are at pages 26 to 30 of the Claimants' bundle of documents. Further, the despite the foregoing, the Respondent's director demanded that the Claimant send a resignation letter despite her knowledge that she was unwell and had been hospitalized. 34. On 4th May 2022, Angela wrote as follows; - “...Hi. I need in writing that the 3rd of May is your last day. Thanks..." Claimant responded "Hi. Angi. Sure I will write as soon as I get energy and am done with hospital" Angela respondent It does not have to be long - just a short message saying your last day. I checked with your HR consultant and the WhatsApp message is not. In fact, the Respondent's director went to an extend of drafting the format of the resignation notice as follows; - "Dear Angi. After all this time, please accept my resignation from GSN on 3rd May 2022. Wishing you all the best. Rahma. That is all I need-but I do need it in writing" 35. Again, on 9th May 2022, Angela wrote as follows; - "...Hi. How are you doing? Just to remind you, we need your resignation letter if you can do that..." That the Respondent's conduct indicated above is clear breach and repudiation of contract. The Respondent pushed the Claimant to the wall by withholding her salary for more than 10 months. And after the Claimant was hospitalized for stress related work, the Respondent's director shamelessly asked her to resign and in fact went ahead and drafted how the resignation notice should look like. As if that wasn't enough, the Claimant offered to pay Kshs. 405,322 as full and final settlement as per emails at pages 23 of the Claimant's bundle of documents. We therefore submit that the cumulative effect of the foregoing clearly demonstrates that the conduct of the employer, the Respondent herein, constitutes a repudiatory breach of the contract of the Claimant's employment contract. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 13 | 32

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Accordingly, the Claimant herein was constructively dismissed by the Respondent, and we urge this Court to find so, and to grant prayers (a) and (b) of the Claim dated 23rd September, 2022. The Respondent’s submissions 36. Whether the claimant was unfairly terminated-a) Resignation by the Claimant -The evidence on record confirms that the Claimant tendered her resignation on 13th June 2022. There was no termination initiated by the Respondent. Under Section 47(5) of the Employment Act, the burden of proving unfair termination lies with the employee. Where an employee resigns voluntarily, a claim for unfair termination cannot stand unless constructive dismissal is proved. The Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR held that for constructive dismissal to be established, the employer must have fundamentally breached the contract, thereby making continued employment intolerable. 37. In the present case, it is notable that the salary reduction was occasioned by a global pandemic and the employer did all she could to make all the employees at work including taking of personal loans while other organizations were shutting down and sending their employees home a fact which the court had taken judicial notice of as shall be espoused herein under. Further, the reductions were applied uniformly to staff and did not target a single employee or class/group of employees. Additionally, staff were given the option of part-time work. As such, there is no evidence of targeted victimisation or fundamental breach aimed at the Claimant. 38. Effect of COVID-19 on contractual obligations - the Respondent is a donor-funded NGO and experienced financial hardship during COVID-19. In 2021, donor funding significantly reduced due to the COVID-19 pandemic, necessitating operational restructuring. Kenyan courts have JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 14 | 32

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taken judicial notice of the severe economic disruption caused by COVID-19. In Simon v Board of Management St Agnes Gaukene Girls Secondary School, ERCL Appeal Number E006 of 2023, the Court found that the Respondent's ability to pay its workers was obviously affected, justifying suspension of salaries and payments. It recognized that the COVID-19 pandemic had an unprecedented and devastating impact on businesses and that employers were entitled to restructure operations to survive economically, provided actions were taken in good faith and within the law. 39. Similarly, Courts have affirmed that an employer facing genuine financial constraints is entitled to reorganize its operations, including altering terms, so long as justification is demonstrated. In the foregoing case, the Court acknowledged that salary reductions implemented due to financial distress occasioned by COVID-19 could be lawful where justified by economic hardship and applied transparently. This finding reflects the facts in the present case. It is notable that, to her credit, the Respondent reduced salaries by 50% across staff, continued paying half salaries despite funding collapse and maintained statutory NHIF remittances, thereby avoiding mass redundancies. The Executive Director even took a personal loan to sustain operations. This demonstrates good faith and effort to mitigate hardship. The doctrine of force majeure and frustration of contract, as discussed in Five Forty Aviation Limited v Erwan Lanoe [2019] eKLR, recognizes that supervening events beyond parties’ control may affect performance of contractual obligations. COVID-19 constituted such a supervening event globally recognized as beyond ordinary commercial risk. 40. Whether the claimant was constructively dismissed- The Claimant voluntarily resigned on 13th June 2022. Under Section 47(5) of the Employment Act, the burden of proving unfair termination JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 15 | 32

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lies with the employee. It is notable that the Claimant’s fixed-term contract was due to lapse on 30th June 2022. As such, her resignation on 13th June 2022, after absconding duty in May 2022, was suspiciously timed near the natural expiry of the contract. In Herbert Wafula Waswa v Kenya Wildlife Services Civil Appeal No. 14(A) of 2020, the Court of Appeal reaffirmed the guiding principles of determining whether an employee has been constructively dismissed. Prominent among these principles is the requirement that “the employee must not have accepted, waived, acquiesced or conduct himself to be estopped from asserting repudiatory breach; the employee must within a reasonable time terminate the employee relationship pursuant to the breach.” Further, this was the finding in the case Kowino v African Commuters Services 2 others (Employment and Labour Relations Cause E291 of2020) 2025KEELRC600(KLR) (20January2025) (Judgment) the Court was categorical in stating “Constructive dismissal occurs when the employee terminates the contract, either with or without notice, in circumstances in which he is entitled to terminate it with notice by reason of the employer’s conduct. The test of employer misconduct in the context of constructive dismissal implicitly incorporates the common law principle of contract law relating to the employee’s right to resign in the face of a repudiatory breach by the employer. In the case of the case of Western Excavating ECC Ltd v Sharp [1978] QB 761, known for imposing contract test in constructive dismissal, Lord Denning aptly stated; “If conduct the employer is guilty of a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employer is entitled to treat himself discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 16 | 32

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leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: if he continues for any length of time without leaving, he will lose his right to treat himself 5 as discharged. He will be regarded as having elected to affirm the contract.” 41. The Respondent relied on same authority as the claimant by the Court of Appeal in the case of Coca Cola East &Central Africa Limited v Maria Kagai Ligaga [2015]e KLR. 42. The respondent submitted that the decisions cited above, and a host of others, one golden thread reveals itself and rightly so, owing to the character of constructive dismissal, the affected employee must leave within a reasonable time of the intolerable conduct of the employer or the repudiatory breach. Where he doesn’t, he shall be deemed to have waived the right to assert constructive dismissal. In my view, the Claimant’s case herein is that the Respondent committed a repudiatory breach by ceasing to pay him his salary. For purposes of this point, it then becomes important to decipher when the breach occurred. According to the Claimant, the 1st Respondent ceased to pay him his monthly salary in September 2005 and continued to so do until this suit was filed. Undoubtedly, the Claimant didn’t leave and or assert constructive dismissal within a reasonable time. To attempt to assert constructive dismissal almost fifteen years after the alleged repudiatory breach occurred is with great respect to the Claimant unreasonable in itself. By reason of this, the Claimant is estopped from asserting repudiatory breach of the employment contract. He waived his right to claim constructive dismissal.” In the present case, it is evident that the Claimant went on to work for the Respondent company under the new part-time arrangements from October 2021 right until the tail end of her contract in May 2022 that is over seven (7) months. It is clear that such conduct does not constitute a “reasonable time" within which to terminate the employee relationship under constructive dismissal. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 17 | 32

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Decision on issue No.1 43. The claimant alleged she was forced to resign by RW1, who even guided her on what she was to write in the resignation letter. Conversely, the respondent stated that the Claimant voluntarily resigned on 13th June 2022. The respondent submitted that under Section 47(5) of the Employment Act, the burden of proving unfair termination lies with the employee. The respondent contented that it was notable that the Claimant’s fixed-term contract was due to lapse on 30th June 2022. As such, her resignation on 13th June 2022, after absconding duty in May 2022, was suspiciously timed near the natural expiry of the contract. 44. The court established that only the claimant produced documents at the hearing. The claimant in the witness statement stated that upon expiry of a consultancy agreement, she was retained by the respondent as monitoring and evaluation manager on a permanent and pensionable basis vide an employment letter dated 9th August 2018 at an agreed monthly salary of Kes. 300,000. She produced the letter as C-exhibit 3. On perusal of the letter, the court found that the offer was of full-time employment starting 1st July 2018 to 30th June 2019 with possible extension depending upon the needs of the project and funding availability. The court concluded that the claimant’s claim of permanent employment was not true. 45. The claimant further produced a contract of extension of employment amending the letter dated 1st July 2018 and extending the employment to 30th June 2022 with other terms remaining unchanged, including salary of Kes. 300, 000(C-exhibit 13). Those were the terms of employment at exit. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 18 | 32

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46. On the resignation, the claimant stated she was admitted in hospital from 9 th May 2022 for 8 days and produced the discharge summary and clinical sheet at Chiromo Lane Medical Centre. She stated that she continued treatment and counselling at Quaran Centre. That on 30 th May 2022, she returned to Chiromo Lane Medical Centre for checkups and was informed of an improved health condition but was advised to rest and avoid stressful situations. The claimant stated that on 3rd May 2022, while undergoing treatment, RW1 kept sending her messages on WhatsApp asking her to submit a resignation letter. That following the undue pressure, force, coercion and insistent she submitted her resignation letter via email of 13th June 2022. The claimant produced an inpatient receipt stamped 16th May 2022 by Chiromo Lane Medical Centre and an invoice at discharge of Ksh 279,515.00. 47. The court perused the resignation letter dated 13 th June 2022 addressed to the respondent through RW1. The claimant stated in the letter – ‘on 3rd May I informed you, I will put official resignation letter, I was at the office with Wanjiku and I am sure she informed you my health status , I was shaking and did not eat for days till I fainted. ‘’ (page 49 of the claimant’s bundle). 48. The claimant produced WhatsApp communication with RW1. On 4th May 2022 RW1 vide WhatsApp told the claimant – ‘hi I need in writing that the 3rd may is your last day. thanks.’’ The claimant respondent wrote ‘ Hi Angi, sure I will write as soon as I get the energy and am done with hospital.’’ 49. On even date RW1 then wrote back – JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 19 | 32

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‘it does not have to be long – just a short message saying your last date. I checked with our HR consultant and the WhatsApp message is not enough. Even just say, Dear Angi. after all this time, please accept my resignation from GSN on 3 rd May 2022. wishing you all the best Rahma. That is all I need- but I need it in writing’. 50. On 9th May 2022 RW1 asked the claimant how she was doing. RW1 stated‘just to remind you, we need your resignation letter if you can do that, are you feeling better at all?’ 51. The next response by the claimant was on 21st June as follows- ‘Hi Angi, hope you are doing well. I sent you my resignation and demand of my dues last week. I have not gotten any reply.’’(page 29 of the claimant’s bundle). 52. During the hearing, the claimant stated she was under pressure to resign and relied on the foregoing WhatsApp messages. The court deduced from the WhatsApp communication and the letter of resignation that, on 3rd May 2022, the claimant informed the employer she would submit an official resignation letter. The court concluded that the RW1 was following up to obtain the resignation in writing. It was evident to the court that, from 3rd May 2022, the claimant was not on the shop floor and, having been intimidated, resigned on 3rd May 2022. The court finds no fault with the employer following up on the resignation letter, albeit for record purposes. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 20 | 32

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53. Was the resignation a constructive dismissal? The court agreed on the applicable jurisprudence and adopted the same as pronounced by the Court of Appeal in the case of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] e KLR (authority cited by both parties), where it was stated:“The key element in the definition of constructive dismissal is that the employee must have been entitled to or have a right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which gives rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behaviour towards him was so unreasonable that he could not be expected to stay-this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constitutes a repudiatory breach of the contract of employment-this is the contractual test.” 54. The Court of Appeal at paragraph 30 of its decision laid down the principles of constructive dismissal, thus:- “The legal principles relevant to determining constructive dismissal include the following:a. What are the fundamental or essential terms of the contract of employment? b. Is there a repudiatory breach of the fundamental terms of the contract through the conduct of the employer? c. The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. d. An objective test is to be applied in evaluating the employer’s conduct. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 21 | 32

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e. There must be a causal link between the employer’s conduct and the reason for the employee terminating the contract i.e. causation must be proved. f. An employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach. g. The burden to prove repudiatory breach or constructive dismissal is on the employee. h. Facts giving rise to repudiatory breach or constructive dismissal are varied.” 55. During cross-examination, the claimant told the court that she did not want to leave employment and that she stayed for 10 months without pay. She could not take the pressure anymore. She wrote the resignation letter after she came out of the hospital. That she was hospitalised, and RW1 kept on pressuring her to resign. She told the court her salary was reduced by half and there was no communication. 56. On why she took 10 months to resign, the claimant stated it was because of the nature of work, the respondent being a trauma organization which had impact on communities in Majengo, Nairobi, Mombasa, Somalia, and South Sudan and that she succumbed because of financial pressure. She had debts. The lack of money was the main reason. She admitted NHIF and NSSF was paid. She had mandatory medical cover per contract. The medical insurance was stopped in November 2020 due to lack of money. There was no formal communication. The medical insurance was a medical benefit. She was in a mental hospital in and out. On why she did not use NHIF, she told the court she budgeted her salary and terms of service. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 22 | 32

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57. The issue of reduced salary and stoppage of medical insurance cover was not in dispute. Under the employment contract the monthly salary was Kes 300,000. Clause 8 provided for health and accident insurance for the employee and dependents, as outlined in the personnel manual. 58. RW1, during cross-examination, told the court that as at the time the claimant left, she earned ½ of the KES 300,000 and worked half-time, and this was during COVID-19. RW1 did not produce the time sheets. She told the court that from September 2021 the claimant received KSHS. 150000, being ½ salary. The claimant was paid salary upto April when she resigned. The payment was in June 2022. RW1 told the court they do not owe the claimant money for work done. RW1 admitted to having sent the claimant a message to resign on the basis that they had not seen her for a month and ½ without stating where she was. 59. On a WhatsApp message of 4th May 2022, alleged to have been sent when the claimant was unwell, RW1 told the court that the claimant said she had resigned; she did not say she was sick. RW1 told the court that NHIF was fully paid for staff. That the respondent could not afford the medical insurance cover in 2021. 60. The court finds that the claimant advanced several reasons to support the claim of constructive dismissal. The court already held that the claimant admitted in the resignation letter that she informed the employer she had resigned on 3rd May 2022. The court then returns that the subsequent messages by RW1 was a follow up on official resignation letter. That was a reasonable request by the employer, as the claimant was no longer at the shop floor, and the court did not find compliance by the claimant with sick leave requirement under section 30 of the Employment Act, which statesJUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 23 | 32

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‘30. Sick leave (1)After two consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service, subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner's behalf in charge of a dispensary or medical aid centre.(2)For an employee to be entitled to sick leave with full pay under subsection (1), the employee shall notify or cause to be notified as soon as is reasonably practicable his employer of his absence and the reasons for it.’’ 61. The claimant did not comply with the foregoing law on sick leave with respect to the period from 3rd May 2022 when she stated she was in the office. Could this be because she had already resigned? I believe so. 62. The court did not find evidence of compliance with change of terms of employment. The employer cannot just reduce the salary of an employee without consultation and concurrence of the employee. While the court appreciated that the claim was within the COVID period, the employer continued to renew contracts at the same terms; thus, the employer was obliged to pay salary as per the contract. Failure to pay agreed salary as per contract amounts to repudiation of the contract. Salary payment is at the core of the employment contract, and failure to comply would have entitled the claimant to terminate services and claim constructive dismissal, as she did. Indeed, the letter of extension of contract signed on 1st July 2021 indicated salary as Kshs 300,000 for the period ending 30th June 2022. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 24 | 32

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63. On the medical claims, the statutory requirement on medical is as follows‘34. Medical attention (1)Subject to subsection (2), an employer shall ensure the provision of sufficient and proper medicine for his employees during illness and, if possible, medical attendance during serious illness. (2)An employer shall take all reasonable steps to ensure that he is notified of the illness of an employee as soon as reasonably practicable after the first occurrence of the illness. (3)It shall be a defence to a prosecution for an offence under subsection (1) if the employer shows that he did not know that the employee was ill and that he took all reasonable steps to ensure that the illness was brought to his notice or that it would have been unreasonable, in all the circumstances of the case, to have required him to know that the employee was ill.’ 64. There is no evidence before the court that the claimant tendered any medical claims for reimbursement to the employer. The court noted that at all material times the employer maintained the statutory NHIF cover. The medical claim has no basis and is disallowed. 65. In the upshot, I held that the claimant proved a case of constructive dismissal on account of reduction of salary to ½ without consent and in breach of the contract of employment. Whether the claimant was entitled to relief sought 66. The claimant sought for the following Orders against the respondent- JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 25 | 32

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a) A declaration be and is hereby issued that the Claimant was constructively dismissed by being unduly forced, pressured and/or coerced to involuntarily resign on 13/06/2022 by the Respondent. b) A declaration be and is hereby issued that the Respondent subjected the Claimant to discrimination, unfair labour practice and unreasonable working environment leading to involuntary resignation on 13/06/2022. c) An order be and is hereby issued directing the Respondent to pay the Claimant her terminal dues as computed below. i. Compensation for constructive dismissal equivalent to twelve (12) months’ basic salary. Kshs. 3,600,000/- ii. Payment of withheld salaries for 10 months at 150,000/- per month from September 2021-June 2022. Kshs. 1,778,219/- iii. Reimbursement of medical expenses incurred in Chiromo Medical Centre and Quran Centre. Kshs. 429,514/- iv. Severance pay at the rate of 15 days per year worked as per Clause 9 of the Employment Contract. Kshs. 591,780/- v. Unpaid 12 leave days accrued but not taken. Kshs. 118,356/- vi. One (1) month’s salary in lieu of notice. Kshs. 300,000/- vii. Reimbursement of fees paid at NGO Coordination Board Kshs. 4,000/- Total Claim Kshs. 6,821,870/- 67. Following the finding on constructive dismissal, the court declared that the resignation of the claimant on 3rd May 2022, documented vide the letter of 13th June 2022, was involuntary due to JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 26 | 32

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repudiation of the contract by the respondent’s payment to the claimant ½ salary without consent. 68. On claim for compensation on account of constructive dismissal, the court noted that the claimant had worked for almost 5 years. She did not contribute to the termination. The contract ended on 30th June 2022, while she expressed her resignation on 3rd May 2022. The court noted that the salaries were reduced during the COVID-19 period. The court took judicial notice that all employers were in financial distress. (Section 49 (4)of the Employment Act applied)The only mistake by the employer was failure to comply with the law and reduce the reduction of salary in writing and seek consent of the claimant as per section 10(5) of The Employment Act – ‘5)Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing’. 69. In Simon v Board of Management St Agnes Gaukene Girls Secondary School [2025] KEELRC 2427 (KLR) the Court found that the Respondent's ability to pay its workers during COVID -19 was obviously affected, justifying suspension of salaries and payments. The court held – ‘The court, further takes judicial notice that the Government closed down all learning institution until the last quarter of the year 2020 as one of the measures put in place to contain the spread of the Covid-19 Pandemic.’ JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 27 | 32

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70. Taking the foregoing into account, I award the claimant 1 month's compensation, Kshs. 300,000 for the constructive dismissal. 71. Having found constructive dismissal, the claimant is further awarded one (1) month’s salary in lieu of notice, Kshs. 300,000/- due under section 35 of the Employment Act. 72. Unpaid salary claim was as follows- Payment of withheld salaries for 10 months at 150,000/- per month from September 2021-June 2022. Kshs. 1,778,219/-. The court held the claimant resigned on 3rd May 2022 as indicated in her resignation letter. She was not on the shop floor from that date. The claimant is not entitled to any salary after 3rd May 2022. RW1 stated that the claimant was paid ½ salary from September 2021 to April 2022. As per correspondence between RW1 and the claimant, on the 21st June, she stated that ‘today at 10.44 am, half salary was deposited in my account. I don’t know which month it is for and where it puts us’ 5.06 pm.’(page 27 of the claimant’s bundle). On the same date, RW1 responded as follows- ‘Dear Rahma, the salary you received this morning was for April 2022. It was processed in May, but it bounced back, and we have not received it…’’ 6.12 pm (page 26 of the claimant’s bundle) The claimant then wrote ‘thank you, understood and well noted.’’6.23 pm (same page) The court finds that the claimant understood that the salary arrears paid included the month of April. Based on the claimant’s evidence, the court finds that she worked for 3 days in May 2022 and is entitled to be paid. The court allows the claims for ½ salary for 7 months (September 2021-March 2022) and 3 days' salary, for a total sum of 7x150,000 (1,050,000) pus 3/30x 300,000(30000), for a total of Kshs. 1,080,000/- as unpaid salary. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 28 | 32

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73. The claim of medical expenses is disallowed for non-compliance by the claimant with section 30 of the Employment Act, and having resigned on 3rd May 2026. Resignation is unilateral. 74. Severance pay- The court found that the claim was founded on the contract dated 9th July 2018, extended to 30th June 2022. Clause 9 of the contract states:‘9. Other Benefits Any benefits or additional compensations to salary are subject to the board of management review and approval and are therefore conditionally provided until that approval is received. Unless otherwise explicitly stated, GSN will always abide by current local labour law. Severance Payment: Upon termination of this contract, the employee is entitled to receive 15 days' pay per year of service, prorated for partial years, in accordance with Kenyan law. This payment is not dependent on a satisfactory annual employment review and is payable irrespective of the type of separation. Any benefits or additional compensations to salary are subject to the board of management review and approval and are therefore conditionally provided until that approval is received. Unless otherwise explicitly stated, GSN will always abide by current local labour law.’ 75. The court returns that upon termination of the contract, the claimant was entitled to receive 15 days' pay per year of service, prorated for partial years. This payment was not dependent on a satisfactory annual employment review and is payable irrespective of the type of separation. The court cannot rewrite the parties' contract. The claim is allowed as prayed for Kshs. 591,780/76. On the claim of accrued leave for 12 days, I find the same was not proved on the balance of probabilities. The reason for doubting the claim is hinged on the fact that it was not explained for which period leave was accrued. Secondly, it was not a claim under the listed claims in the demand letter. It was thus an afterthought unsupported claim and is disallowed. The same JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 29 | 32

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position applies to the claim for reimbursement of fees paid at NGO coordination. It is disallowed. 77. The claim for general damages was unsupported. At the hearing, the claimant had no proof that she was the only one paid ½ salary or that all employees were not on NHIF from September 2021. The claim is related to unfair labour practice was compensated as above. The compensation for constructive dismissal suffices. 78. The certificate of service is an automatic, unconditional right of the employee under section 51 of the Employment Act – ‘51. Certificate of service (1)An employer shall issue to an employee a certificate of service upon termination of his employment, unless the employment has continued for a period of less than four consecutive weeks. (2)A certificate of service issued under subsection (1) shall contain— (a)the name of the employer and his postal address; (b)the name of the employee; (c)the date when employment of the employee commenced; (d)the nature and usual place of employment of the employee; (e)the date when the employment of the employee ceased; and (f)such other particulars as may be prescribed. (3)Subject to subsection (1), no employer is bound to give to an employee a testimonial, reference or certificate relating to the character or performance of that employee.’’ The certificate of service to issue to the claimant accordingly. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 30 | 32

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DISPOSITION 79. Judgment is entered for the claimant against the respondent as followsa. A declaration be and is hereby issued that the Claimant was constructively dismissed from employment by the respondent effective 3rd May 2022. b. Compensation for constructive dismissal equivalent to 1 month's salary Kshs. 300,000/-. c. Notice payment of 1 month’s salary Kshs. 300,000/-. d. Unpaid salary for ½ salary for 7 months (September 2021-March 2022) and 3 days salary, total sum 7x150,000 (1,050,000) plus 3 days in May 2022 - 3/30x 300,000 (30000) total Kshs. 1,080,000/-. e. Severance payment under clause 9 of contract - Kshs. 591,780/Total sum awarded – Kshs 2,271,780/f. Costs and interest from judgment date. g. Certificate of service to issue under section 51 of the Employment Act within 30 days of this judgment through the advocate’s office. 80. Stay of 30 days granted. 81. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 31 | 32

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IN THE PRESENCE OF: Court Assistant: Otieno Claimant: Rotich Respondent: Litunda JUDGMENT IN NAIROBI ELRC NO. E688 OF 2022 P a g e 32 | 32

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