The Employment and Labour Relations Court in Mombasa has awarded a former branch manager Ksh5.9 million after ruling she was constructively dismissed through a hostile work environment.
The Employment and Labor Relations Court in Mombasa has ruled that an employee who resigns can still be considered unfairly dismissed where an employer's conduct makes continued employment intolerable, awarding a former branch manager Ksh5.9 million in compensation.
In a judgment document obtained by Don Sami Live, the court found that the claimant was constructively dismissed after a prolonged breakdown in the employment relationship. The dispute arose after she complained of public humiliation, an unexplained change in reporting lines, disciplinary action issued without a hearing, and repeated failure by management to address her grievances.
"Constructive dismissal is not a term appearing, ipso facto, in the text of the Employment Act, 2007. It is a doctrine of judicial construction, imported into our labor jurisprudence to address the reality that an employer can engineer an employee's departure just as effectively by conduct as by a signed letter of termination, and that the law would fail in its purpose if it allowed an employer to escape the consequences of an unfair dismissal merely by ensuring that the employee, rather than the employer, spoke the words of departure," the judgment read.
The ruling means an employee's resignation does not automatically shield an employer from liability where workplace conduct has effectively pushed them out. The court held that an employer's intention to force a resignation is not necessary where its conduct objectively makes the working relationship untenable.
The employee had repeatedly raised concerns and sought intervention before eventually resigning, and the court found this did not amount to accepting or tolerating the treatment. It considered the events collectively, explaining that their cumulative effect could destroy the trust and confidence essential to an employment relationship — meaning constructive dismissal can arise from a series of actions even where no single incident is serious enough on its own to force a resignation.
The judgment clarified that the burden of proving constructive dismissal rests with the employee, though credible testimony supported by timely workplace records can be sufficient even without other witnesses. The employer had filed a defense and counterclaim seeking three months' salary in lieu of notice, but the court dismissed it — no witness was called to support it, and it had been filed outside the statutory limitation period.
The court declared the resignation a constructive dismissal and ordered the employer to pay Ksh1.527 million in notice pay, Ksh4.072 million in compensation for unfair dismissal, and Ksh296,832 for untaken leave — a total award of Ksh5.895 million, with interest at court rates from the date of judgment, August 10, until payment is completed.