Constructive Dismissal and Practices in Kenya – Ong’anya Ombo Advocates

Constructive dismissal arises where an employer, in the absence of any justifiable reasons for dismissal, advances to create circumstances that will bring about a dismissal leading to the resignation of an employee in response to the fundamental breach of the contract by the employer.

The primary concern in constructive dismissal in Courts is the conduct of the employer and not the conduct of the employee unless waiver, estoppel or acquiescence is in issue. Acquiescence operates to vitiate the claim. i.e. where the employee continues working long after the breach occurred. Examples of breach of a contract include; variation of the terms of employment contract unilaterally without consent or a reasonable negotiation, failure to pay, an unlawful deduction of wages or sexual harassment.

An employee must establish the following for the Court to consider that a constructive dismissal has occurred: -

  1. That the employer made a fundamental change to the contract of employment unilaterally to the extent that the continuation of the employment is illogical;
  2. That the employee resigned in response to that fundamental breach; and
  3. The employee would have continued working had the employer not created the fundamental breach.

It is noteworthy that an employee’s claim for constructive dismissal remains valid whether he/she leaves immediately without giving notice or he/she has tendered a valid resignation.

In remedying the situation, the Court may ignore the change or amendment of the contractual terms and uphold the earlier contractual terms. Also, it may stay the implementation of the change of contractual terms until consultations and negotiations are undertaken.

An employer should always undertake to consult with an employee before making any fundamental changes to the agreed terms and conditions of the employment contract. Consultation is mandatory, however, the consent of the employee is not.

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