The Kenyan economy has taken a hard hit from the Covid-19 pandemic.
Employers are being forced to let go of their employers. Unfortunately, some employers believe they have no other option but to use dubious means to avoid labour law suits.
Some of these include inducing an employee to resign because they have no substantial cause to terminate an employment contract and this is what is known as constructive dismissal.
The Kenyan economy has taken a hard hit from the Covid-19 pandemic. Employers are being forced to let go of their employers. Unfortunately, some employers believe they have no other option but to use dubious means to avoid labour law suits.
Some of these include inducing an employee to resign because they have no substantial cause to terminate an employment contract and this is what is known as constructive dismissal.
This is where an employer resorts, where there is no justifiable cause, to creating an environment or circumstances that lead to resignation of an employee in response to the fundamental breach of the contract by the employer.
If the employer induces an employee to resign then this can be presumed to be termination.
Take for instance, an employer during this pandemic faced with financial difficulties and can no longer afford to keep the employee, conforms to threatening or uses other ways to induce the employee to resign. The employee then initiates termination with the knowledge that he/she has been fired.
WHAT YOU NEED TO PROVE
An employee needs to show that their employer’s conduct was such that led to the working environment becoming intolerable causing them to resign. The employer must have shown that they are no longer willing to maintain the contract and the employee had sufficient reason to resign. The employee must therefore establish:
• That a fundamental unilateral change to the contract rendering continuation of employment impossible occurred. • That they resigned because of the fundamental breach. • That they would have continued working if not for the fundamental breach.
The employee’s behaviour is irrelevant in determining whether there was constructive dismissal. However, it may be considered in determining the quantum of damages.
It is important to note that the employee’s constructive dismissal stands valid even though they left immediately without issuing a notice.
In fact, courts have taken the approach that if an employee claiming constructive dismissal continues working or returns to work after resigning, it will be presumed that they would have continued working despite the employer’s behaviour. Hence, a claim for constructive dismissal will fail.
BEHAVIOUR THAT LEADS TO CONSTRUCTIVE DISMISSAL
Constructive dismissal may be caused by unilateral changes in a contract, suspension without pay, bullying and swearing, verbal abuse, arbitrary behaviour, employer tricking employee into resigning and being offered a disproportionate disciplinary penalty.
The court has ruled that in certain instances the employer need not threaten or coerce or put under duress an employee. In a certain case, the claimant was transferred severally without being given a chance to settle and make progressions in her career. The claimant was awarded damages for wrongful dismissal.
The employer’s conduct could be a one-off repudiatory breach of contract or an act which is detrimental to the employee which serves as a last straw or a series of less serious breaches of contract that lead to a fundamental breach.
WHAT CAN ONE CLAIM?
In most instances, monetary damages for unfair or unlawful termination may be awarded on a 12-month salary basis. This is provided in the Employment Act 2007. It is therefore, up to the courts to review the facts to come up with an appropriate sum depending on the circumstances of the case.
