1. The Claimant filed his statement of claim on 29th July, 2020 and pleaded inter alia as follows: -
a. The Claimant was employed by the Respondent as a Managing Director on a two- year contract which was supposed to run from 9th October,2019 and to terminate on 8th October,2021 at a monthly gross salary of Kshs 600,000/=
b. The Claimant averred that on or about 28th February,2020 he resigned citing harsh working conditions and environment created by the Respondent and other employees working under the directions of the Respondent.
c. The Claimant averred that the Respondent created harsh working conditions at the workplace in order to force him out of employment which conduct was unfair labour practice.
d. The Claimant further averred that despite holding a meeting with the Respondent on 16th December,2019 where he highlighted the issues that were hampering smooth discharge of his duties in the office, those issues remained unresolved.
e. That there was no actual dismissal of his employment but the employment contract became untenable hence unbearable for the Claimant to perform his duties willfully and dutifully. He avers that he was therefore unfairly dismissed.
f. The Claimant averred that his dismissal was unfair and unlawful as it fell short of sections 45 and 46 of the Employment Act and Article 41 of the Constitution. This infringed on his right to fair labour practices.
g. That the Respondent was fond of using vulgar/derogatory words against his person and was apprehensive that the Respondent would continue with the same unless stopped with an injunction of the court.
2. The Claimant in the upshot prayed for the following against the Respondent;
a. A declaration that the Termination of the Claimant was wrongful and unfair hence amounted to constructive dismissal.
b. Prohibitory injunction barring the Respondent from publishing or writing negative references to potential employers or third parties in relation to the Claimant.
c. 12 Months Compensation for unfair Termination Kshs 600,000 x 12 = Kshs 7,200,000/=
d. Compensation for loss of earning for the remainder of his contract term.
e. Costs of the suit and interests on present court rates.
3. The Respondent filed its Response to Memorandum of Claim dated 28th August, 2020 and they averred inter alia as follows;
i. The Respondent denied the contents of the claim and averred that the first six months from commencement date being 9th October 2019 and 8th April 2020 were probationary period and the Claimant was under probation.
ii. The Respondent averred that it admitted that the Claimant sent a resignation letter dated 28th February,2020 which was not necessary as outlined in clause 15 of the Employment Contract.
iii. The Respondent further averred that the reasons cited in the resignation letter are unfounded and the Respondent was a total stranger to such claims of harsh working condition or environment being created by the Respondent and other employees of the Respondent. The Respondent denied creating harsh working condition at workplace in order to force the Claimant out of his employment.
iv. The Respondent further averred that the reasons and procedure for termination of the Claimant were fair.
v. The Respondent averred that it provided a conducive and safe working environment for all its employees and the Claimant was unable to cope with the responsibilities accorded to him at the Respondent’s work place and opted to resign. In addition, the Respondent averred that there were no any issues occasioned by the Respondent which hampered his discharge of his duties.
vi. The Respondent maintained that the Claimant was never dismissed but he resigned and terminated his probation contract. That the reason for resigning of hostile working environment to induce him in to resigning was an afterthought by the Claimant to unjustly enrich himself.
vii. The Respondent averred that the Claimant served his notice period and his contract with the Respondent terminated on 31st March,2020. That upon termination the Respondent paid the Claimant all dues owed to him and in addition paid him one month’s pay to help him transition. The Respondent therefore denied that the termination of the Claimant’s employment was in any way unfair and unlawful.
viii. The Respondent averred that there was no need for injunctive orders to stop actions which have not occurred since the relationship between the Respondent and the Claimant had since ceased.
ix. The Respondent also disputed the jurisdiction of this court to hear and determine this suit.
x. The Respondent prayed that the statement of claim be dismissed.
EVIDENCE
4. The Claimant’s case was heard on 26th April,2023 where three witnesses testified.
5. The first witness was the Claimant who adopted his statement and documents filed in court as his evidence in chief. It was CW1’s testimony that he was forced out of employment as there was a lot of insubordination from the CEO while he was the Managing Director.
6. That as the Managing Director he would make decisions which would be turned down in his presence. He was heading the Kenyan Market but decisions concerning Kenya would be made outside without his knowledge or involvement.
7. It was the CW1 testimony that the Human Resource Manager was unfairly terminated as well. He felt that he was only called to witness event and not in control.
8. It was the CW1 testimony that the CEO used vulgar language and ‘F’ words against him which was against his culture as a Kenyan.
9. CW1 stated that he signed the discharge documents upon resignation. That he signed the document because he wanted his dues paid.
10. In Cross examination CW1 testified that the issues of humiliation once happened when a colleague was found drinking while at work but when he said he would deal with nothing happened. He could not remember the specific date. That the junior staff were all Kenyan who were the sales agents and managers.
11. It was CW1 testimony that the firing of the Human Resource Manager was unfair. That he was asked to sign her termination letter and he refused. He did not have the copy of the said termination letter but did not give the exact date the termination occurred. The Human Resource Manager was not his witness in court.
12. CW1 stated that the vulgar words were not documented and further that the discrimination concerned service Centre team who were treated in a more special way than the rest. An example was training which used to be selective.
13.
14. CW1 testified that the staff under him were unclear about their job profiles and reporting. That the staff went to him to complain. He stated that he signed the letter under duress and it was against his will. He confirmed that he did not document the duress in his statement. CW1 stated that there were exchanges of Whatsapp messages and emails even though not all were filed in court; only some.
15. On re-examination CW1 confirmed that he was in charge of all employees in Kenya. That the termination of the Human Resource Manager was done without his consultation. That he did not keep personal information as that was the work of the Human Resource Manager.
16. The second witness was Maxwell an insurance professional who adopted his statement as his evidence in chief. He testified that the Claimant was his Managing Director. That he was forced to resign from Respondent’s employment. He witnessed the Claimant being frustrated in the performance of his duties. CW1’s decisions were overruled by the CEO and other staff such as the head of operations. That during weekly meetings the CEO could contradict the Claimant on strategic decisions.
17. On cross examination CW2 confirmed that the infighting was between the head of operations and head of growth. The Head of Operations would contradict the Claimant. He did not mention specific date and that the infighting was not confined to one day.
18. CW2 confirmed that the CEO would contradict the Claimant which would shame him before his juniors. He termed them as disrespect. That they were to work as a team under the Claimant but the CEO affected that organization by giving some staff members some preference.
19. The claimant’s third witness was Salome who adopted her statement as her evidence in chief. She confirmed that the Claimant was her Managing Director at the Respondent. That there were interrogations about her. That the Operations Head seemed to be interfering with her work.
20. She confirmed that the Operations head would overturn instructions to her from the Claimant. That the reporting became unclear at the end. That the relationship between the CEO and the Claimant was not cordial. The CEO would storm training sessions when the Claimant was- at his feet giving a contrary direction from the Claimant.
21. On cross examination CW3 confirmed that the orders were not documented but referred to generally in her statement. There was no email or letter documenting these issues. That she had her way of getting information from staff. None of the witness were and the incidents had been generalized without any documentation.
22. CW3 clarified that she raised the issues verbally with Human Resource.
23. In re-examination CW3 clarified that they did not record proceedings in the office unless unofficially. That there were no CCTV at the time.
24. The Respondent on the other hand called its three witnesses with the first one being Tonny Kigett (RW 1) Operations department associate who testified and adopted his statement and the documents filed in court as his evidence in chief.
25. RW1 testified that the Respondent was an insurance agency with the Claimant being its managing director from 2019 until April 2020 when the Claimant left. He confirmed that the Claimant resigned while on probation and the working conditions were not harsh as they sat in open office. It was his evidence that he never saw any conflict between the Claimant and the Chief Executive officer. That they used to have events and outdoor activities where they worked as a team.
26. In cross examination RW1 testified that the head of the team was the CEO then and that the Claimant was below the CEO but above them as he was reporting to head of operations. RW1 confirmed that he never saw the resignation letter and that he had submitted the documents which were email communicating the resignation. He never had a glance at the Claimant’s employment contract. He assumed the letter had a probation clause which was a standard practice in employment.
27. RW 1 testified that he attended the last quarterly meeting and the Claimant could not raise issues of harsh working conditions before his juniors.
28. In Re-examination RW1 clarified that his contract had a probationary period too and he could not know what was happening because they were few and the organization had just started.
29. The second witness was Joy Wanjiru (RW 2) who adopted her statement filed in court as evidence in chief and in cross examination confirmed that her statement was similar to that of RW 1 and that she used to report to the head of operations who used to report to the CEO. She could not tell if the head of operations was at the same level as the Claimant since she did not sit with management team.
30. RW2 confirmed that she attended outdoor meetings which were organized by the Human Resource Training who left before the Claimant. The CEO would attend those outdoor meetings. She confirmed that she was not aware under which circumstances the HR left and did not know if there were any disagreements among the management.
31. In reexamination RW2 confirmed that she never saw any disagreement among the management and that the offices were open hence everyone could see each other.
32. The third witness was Grace Kamura (RW 3) who adopted her statement filed in court as her evidence in chief and in cross examination testified that the statement was similar to her colleagues because they were of the same view. She confirmed having worked with the Respondent for four years and the Claimant found her there having worked for two months. That she worked with the Claimant for around four months.
33. RW 3 confirmed that she was not in senior management of the Respondent hence could not tell if there were issues raised by the Claimant to the management and that she used to report to the Claimant.
34. In Re-examination RW 3 clarified that her tasks were allocated by head of growth before the Claimant reported.
CLAIMANTS’ SUBMISSIONS
35. The Claimant filed written submissions dated 23rd October, 2023.On the issue of whether his resignation from employment was occasioned by harsh working conditions the Claimant submitted that the Respondent was in breach of its obligation to create a conducive working environment hence in contravention of employment laws.
36. It was the Claimant’s submission that the reporting structure of the Respondent was unclear and the CEO retained direct control to instruct and direct even junior employees and give contrary directions from those of the Claimant. In addition he submitted that employees would be hired and fired without his consultation as the Managing director with an example of the Human Resource Manager who was dismissed despite his protestation.
37. It was the Claimant’s submission that all the three witnesses called by the Respondent were junior employees who did not sit at management level to counter his allegations of mistreatment.
38. On the issue of whether this exit amounted to constructive dismissal the Claimant submitted that it did amount to constructive dismissal. He relied on a number of case laws including the Court of appeal case of Coca Cola East and Central Africa Limited versus Maria Kagai Ligaga,(2015) eKLR among others to submit on what amounts to constructive dismissal.
39. It was the Claimant’s submission that the Respondent made the working place so unbearable such that he had to tender his resignation. This amounted to constructive dismissal hence his termination was unfair, unlawful and in contravention of employment laws including sections 18(4), 41 and 45 of the Employment Act. To support the submission the Claimant relied on a number of case laws on unfair termination including the Court of Appeal case of the Julimatt Enterprise Limited versus Vincent Mugadia Kitazi(2018) eKLR among others.
40. On the issue of whether the Claimant was entitled to the reliefs sought the Claimant submitted that he was employed on a two year contract but left employment four months later due to the environment created by the Respondent. It was his submission that he had discharged his duty to prove constructive dismissal which was unfair hence entitled to reliefs sought in his claim.
41. On the issue of who should bear costs the Claimant submitted that section 27(1) of the Civil Procedure Act provides that the costs shall follow unless the court shall order otherwise for good reason. He prayed that the court awards costs to him.
RESPONDENT’S SUBMISSIONS
42. On the other hand, the Respondent filed its undated submissions and on the issue of whether there was substantial evidence to substantiate the Claimant’s allegations of a hostile working environment counsel submitted that to prove the existence of a hostile environment, an employee must demonstrate that the offensive conduct or conditions were severe, pervasive and had a detrimental impact on their ability to perform their job.
43. It was the Respondent’s submission that the said allegations were not corroborated or supported by any documentary evidence hence not substantiated. It maintained a conducive working environment for all employees. No employee was discriminated or humiliated.
44. It was the Respondent’s submission that there were no grievances or complaints reported to the Human Resource department of such nature for internal resolutions. The Respondents termed these allegations as an afterthought made to tarnish its reputation. That the resignation letter contained generalized accusations which could not be substantiated.
45. On the issue of whether this amounted to constructive dismissal the Respondent relied on a number of cases including the Coca Cola case relied by the Claimant among others to submit that the Claimant did not officially raise expressly any dissatisfaction with his employment conditions until his resignation on 28th February,2020.
46. It was its submission that there being no substantiated evidence on the Respondent’s interreference of breach of terms of employment contract it followed that the Respondent was not involved in the alleged dismissal. It was its submission that the burden of proof of those allegations was on the Claimant. That the engagement with the Claimant was a short one of around four months which was also probationary hence provisional and subject to evaluation.
47. It was the Respondent’s submission that the Claimant who was still on probation could not raise issues of constructive dismissal. He had not been reviewed and confirmed to permanent service. The Respondent relied on the case of Danish Jalango & Another v Amicabre Travel services Limited to submit that the Claimant was not entitled to prayers sought while on probation.
48. The Respondent concluded that there was no constructive dismissal of the Claimant for absence of breach by it and the fact that the Claimant was on probation and relied on the case of Godfrey Allan Tolo v Tobias O. Otieno & Another (2022) eKLR .
49. On the issue of whether the Claimant was entitled to reliefs sought the Respondent submitted that the Claimant was not entitled to the reliefs sought due to lack of solid foundation. That the Claimant voluntarily resigned and dutifully adhered to notice period specified in his resignation letter, concluding his service with the Respondent on 31st March,2020. The Respondent during this transition period discharged its obligation by extending terminal benefits to the Claimant by an additional month’s salary. This was an act of appreciation and gratitude by the Respondent for the Claimant’s services at its employment. The Respondent submits that this should not be construed as admission of any liability.
50. The Respondent prayed that the Claimant’s Claim be dismissed for lacking both factual and legal basis.
DETERMINATION
51. I have reviewed and considered the pleadings, testimonies and submissions by both counsel in support and opposition to the case. I have also considered authorities relied on by Counsels.
52. I have come up with three main issues;
a. Whether the Claimant has proved that the Respondent provided a hostile environment leading to his resignation.
b. Whether the allegations by the Claimant leading to his resignation amounts to constructive dismissal hence unfair termination
c. Whether the Claimant is entitled to the reliefs sought.
(a) Whether the Claimant has proofed that the Respondent provided a hostile environment leading to his resignation.
53. In this case, the Claimant alleged that the Respondent provided a hostile environment which included discrimination, humiliation before junior employees and that the CEO could hire or fire employees without consulting him.
54. I note that apart from the allegations being tabled out in the claim and the statements there was no documentary evidence like an email to the management by the Claimant expressing the said hostile environment until on 28th February, 2020 when he resigned. He had barely worked with the Respondent for 4 Months and from the look of his employment contract he was still on probation.
55. The court is guided by the sentiments of Nzioki wa Makau in Muikamba v Radio Africa Group Limited where the Judge expressed as follows in paragraph 34:
The Claimant asserts constructive dismissal. This as held in preceding cases such as the Maria Ligaga case and others, entails the employer creating such an environment that the employee has no option but resignation. In this case, the Claimant did not show the toxic environment caused her to terminate her contract.
56. I also note that the Claimant and his witnesses who testified in this matter all acknowledged that the allegations were all generalized with no documentation, date and time of occurrence. The witnesses who witnessed the allegations have not been called to this court to corroborate his allegations.
57. This leads to the conclusion that the Claimant has not met the evidential burden of proof as set out under section 107 of the Evidence Act which requires that he who alleges must prove.
58. Section 47(5) of the Employment Act is equally clear that in a claim of unfair termination or wrongful dismissal, the burden of proving the ingredients of unfairness and wrongfulness lies with the employee as was held in the Court of Appeal case of Herbert Wafula Waswa v Kenya Wildlife Services .
59. The Respondent maintained that it provided a good working environment for the Claimant. That there was no complaint made officially by the Claimant to its management. I agree with the Respondent on this proposition because if the Claimant had any complaint nothing prevented him from putting it in writing, a letter or an email.
60. These were the same sentiments in Samira Schwarz v Farzana Nauranga & 2 others [2021] eKLR where it was held as follows:
The Claimant failed to record the verbal abuse whether through memos complaining of it or letters to HR raising the issue. The failure to do so means there is paucity of evidence to find the Respondents breached the terms and conditions of service by failing to provide a conducive environment for its employees and in this case, the Claimant.
61. In absence of any evidence of such hostility I am of the view that there was no hostile working environment leading to the Claimant’s resignation
Whether the allegations by the Claimant leading to his resignation amounts to constructive dismissal hence unfair termination.
62. Constructive dismissal happens where an employer makes the working environment of the employee so unbearable that the employee cannot continue working necessitating the employee to resign.
63. It is noted that the Claimant signed a full and final settlement agreement dated 27th April, 2020 received a month’s salary for April and an additional salary of March, 2020 despite giving notice. The Claimant did not dispute signing or receiving the above payments or illustrating if he was compelled to sign for the same. Even though during hearing he stated that he signed the same under duress it came out clearly that the same duress was not stated in his witness statement.
64. Constructive dismal was considered in the case of Coca Cola East and Central Africa Limited versus Maria Kagai Ligaga,(2015) eKLR where the Court of Appeal held that:-
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 contractual test is narrower than the reasonable test. The dicta in Western Excavating (ECC) Ltd. -v- Sharp [1978] ICR 222 adopts the contractual approach test and we are persuaded that the test is narrow, precise and appropriate to prevent manipulation or overstretching the concept of constructive dismissal. For this reason, we affirm and adopt the contractual test approach. This means that whenever an employee alleges constructive dismissal, a court must evaluate if the conduct of the employer was such as to constitute a repudiatory breach of the contract of employment. Whether a particular breach of contract is repudiatory is one of mixed fact and law. (emphasis mine)
65. From the above case law, it is clear that without proof of any hostile environment in the Respondent’s premises then it goes without say that there was no constructive dismissal. During hearing, all the Respondent’s witnesses confirmed that the respondent’s work place was an open one where all employees could see each other and that they never saw the CEO disagree or have any confrontation with the Claimant.
66. In conclusion there was no constructive dismissal of the Claimant hence the termination was not unfair. The Claimant left voluntarily having given the Respondent one month notice as per his resignation letter. The Engagement between parties ended on 31st March,2020.
Whether the Claimant is entitled to reliefs sought.
67. The Claimant having failed to proof the above prayers it is clear that he has failed to prove his case to the required standards of proof.
68. The claim is therefore found without merit and is hereby dismissed with costs
69. It is so ordered.
Dated at Nairobi this 26th day of January, 2024
Delivered virtually this 26th day of January, 2024
Abuodha Nelson Jorum
Judge