Introduction

Constructive dismissal, also known as constructive discharge or constructive termination, occurs when an employee resigns because the employer’s conduct necessitates it. It occurs when an employer makes working conditions unbearable, pushing an employee to quit. In such cases, the law treats the resignation as a dismissal by the employer, allowing the employee to pursue legal remedies.

Kenya’s employment laws aim to protect both employees and employers, yet many employees still face challenging situations at work that force them to resign.

This article will explore the concept of constructive dismissal, relevant laws, case law examples, and what steps you can take if you find yourself in this situation.

What is Constructive Dismissal?

Constructive dismissal occurs when an employee resigns due to their employer’s behaviour. The resignation is not voluntary but forced by intolerable working conditions. It could involve:

• Unreasonable workload increases
• Salary reductions
• Hostile work environment
• Breach of contract

Constructive dismissal is different from unfair termination in that with constructive dismissal, the employee terminates the relationship through a resignation. On the other hand, with unfair dismissal, the employer terminates the relationship through a dismissal.

The courts in Kenya have recognized constructive dismissal in several cases. It is crucial to note that for a claim to succeed, an employee must prove that the employer’s actions fundamentally breached their employment contract.

Legal Framework Governing Constructive Dismissal in Kenya

Constructive dismissal is not explicitly defined in Kenya’s Employment Act. However, the courts have interpreted Section 45, which deals with unfair termination, to cover constructive dismissal cases. This section mandates that employers provide fair reasons for any termination. When an employer’s actions push an employee to resign, it can be treated as an unfair dismissal.

Section 45 (2) (b) of the Act states that a termination of employment is unfair if “it is found that the employer did not act following justice and equity.”

In constructive dismissal claims, employees must prove that:

1. The employer’s conduct was unreasonable.
2. The employee had no other option but to resign.

Common Scenarios Leading to Constructive Dismissal

Employees often face constructive dismissal in various scenarios. Some of the most common include:

• Harassment or Bullying: When an employer allows or engages in harassment, it makes the working environment intolerable. The courts have recognized such cases in D.M. vs. N.M. [2019], where persistent harassment led to the employee’s resignation.
• Failure to Pay Wages: If an employer withholds wages or makes significant wage cuts without agreement, it can amount to constructive dismissal.
• Unilateral Changes to Contract Terms: If the employer changes the terms of employment, such as working hours or responsibilities, without the employee’s consent, it breaches the contract.

Proving Constructive Dismissal

To succeed in a constructive dismissal claim, an employee must provide evidence showing that:

• The employer’s conduct was so severe that it breached a fundamental term of the contract.
• The resignation was a direct result of the employer’s conduct.
• The employee had no reasonable alternative but to resign.

The courts have stressed this burden of proof in cases like Josephine Mburu v. Kenya Power & Lighting Company Limited [2019], where the employee successfully argued that the employer’s actions left her no option but to resign.

Remedies for Constructive Dismissal

If you succeed in proving constructive dismissal, the courts can award several remedies, including:

• Compensation: Employees can receive compensation for unfair dismissal, which typically ranges from 3 to 12 months’ salary depending on the circumstances.
• Reinstatement: In rare cases, the court may order that the employee be reinstated to their former position, though this is less common in constructive dismissal cases.

The case of Patrick Otieno Onyango vs. Gulf Cable & Electrical Industries Limited [2015] illustrates how courts assess the level of compensation. In this case, the employee was awarded six months’ salary for the suffering caused by his employer’s unjust conduct.

Steps to Take if You Suspect Constructive Dismissal

If you believe you are facing constructive dismissal, it is crucial to take the following steps:

1. Document Everything: Keep a record of the actions of the employer that are forcing you to resign. This could include emails, performance reviews, or changes in your contract.
2. Raise the Issue Internally: Before resigning, you may want to raise the issue with your employer or HR department. This could show the court that you tried to resolve the matter before taking drastic action.
3. Seek Legal Advice: Consult a lawyer to assess your case. They can help determine whether your situation qualifies as constructive dismissal under Kenyan law.
4. Resign Promptly: If the situation becomes unbearable, you must resign promptly. Courts have ruled that if an employee continues working after the breach, it may appear as if they accepted the changes, weakening their claim.

Relevant Case Law

Kenyan courts have ruled on several constructive dismissal cases, offering guidance on how employees can approach these claims. In Gitonga Murungi v. Safari Park Hotel Ltd [2021], the court found that the employer’s actions breached the contract’s fundamental terms, forcing the employee to resign. The court awarded compensation for unfair dismissal.

In Maria Wanjiru Muteru vs. Bob Morgan Services Ltd [2022], the court ruled that salary cuts without the employee’s consent amounted to constructive dismissal. The employer had fundamentally breached the contract, justifying the employee’s resignation.

These cases demonstrate that Kenyan courts take constructive dismissal claims seriously, particularly when the employer’s conduct is unreasonable and creates an unbearable work environment.

Conclusion

Constructive dismissal is a serious issue that affects many employees in Kenya. The law provides clear protections for employees who are forced to resign due to unreasonable conduct by their employers. If you find yourself in such a situation, it is essential to know your rights and take action.

We specialize in handling employment law matters, including constructive dismissal claims. Our team of experienced lawyers will guide you through the process, ensuring your rights are protected, and you receive the compensation you deserve. Contact us today for a consultation and take the first step toward securing justice.