Many are the instances when employees resign from work out of frustration but without knowing whether they have any legal recourse for the circumstance leading to their resignation.
In fact, many employees are wrongly made to believe that once they have initiated their resignation, all their claims against the employer are null.
On the contrary, the law recognises that there are special circumstances that may push an employee to resign without intending, what it refers to as constructive dismissal or termination.
Simply put, constructive dismissal occurs when an employer makes an employee’s work conditions so intolerable that the employee is left with no choice but to resign.
The employee resigns in response to the employer’s conduct at which point the employee is entitled to treat him or herself as having been ‘dismissed’, and the employer’s conduct is often referred to as a ‘repudiatory breach’.
Unlike the traditional dismissal, where the employer directly terminates the employment, constructive dismissal is initiated by employees who feel they have no choice but to resign due to the employer’s actions.
This circumstance often arise where an employer wishes to terminate an employee but elects not to. The employer then takes actions that make the employee so uncomfortable that he or she eventually quits believing oneself to have been terminated.
These actions may include demotion, stripping the employee of important duties, withholding salaries, assigning an employee duty out of the scope of their competence, unilaterally changing terms of employment or creating a hostile or punishing environment.
To establish constructive discharge, the former employee must show that a reasonable person would have resigned under the similar circumstances. For example, if a reasonable employee working under similar conditions would have tolerated the employer’s conduct, the resignation will be found unreasonable.
Likewise, if a reasonable person would have found the working conditions unendurable and would have resigned, the employee will be found to have been constructively discharged.
But it is not enough to show merely that an employer has behaved unreasonably. There must be a fundamental breach of either an express contractual term, or the implied term of trust and confidence.
Furthermore, an employee must have resigned because of the actual breach- not for some other reason. The employee should also make it clear through the resignation letter, reasons for the resignation which is a direct consequence of the employer’s conduct.
Note, however, that constructive termination does not have to arise from a series of events but may arise from one incident that goes to the root of the contract.
The incident can be interpretated as amounting to a repudiatory breach by the employer. Sometimes there is a continuing pattern of behaviour or incidents which, taken as a whole, amount to a breach even though they may not be in isolation. For example, there may be a history of discrimination and harassment. If there is a continuing pattern of behaviour, however, the last straw which leads an employee to resign should relate to the previous acts, so that added together they all amount to a clear breach of trust and confidence. It doesn’t matter if the final act by the employer is minor, as long as it is enough together with the previous series of incidents to amount to a fundamental breach.
In the case of Kenneth Kimani Mburu and Another v Kibe Muigai Holdings Limited, Nairobi ELRC Cause No. 339 of 2011, the court laid out the finer elements of constructive termination which includes; ‘The employer being in breach of the contract of employment, the breach must be fundamental as to be considered a repudiatory breach, the employee must resign in response to that breach and the employee must not delay in resigning after the breach has taken place, otherwise courts may find the breach waived.’
Employees who intend to lodge a claim for constructive termination must be careful not to appear to have waived any breach by the employer.
The waiver may be construed when an employee takes far too long to make a decision to resign from work once aware of the breach.
A waiver could also arise if an employee does something which signals an acceptance of the breach, for example, by sending an email stating that they are happy with arbitrary changes to their contract or if in the resignation letter an employee indicates that they are grateful and happy to have served the employer and they would be willing to take up future roles should an opening arise.
To prove constructive dismissal, an employee has to show that the employer created working conditions that were so intolerable that a reasonable person would have no option but to quit.
In a constructive termination claim, an employee has to prove that the job conditions were intolerable, repeated, and aggravating enough that there was no option but to quit.
However, bad working conditions are not always enough to prove unfair dismissal. Instead, the employer creates or permits an intolerable working environment.
This generally involves making significant changes to terms of engagement that create a continuing pattern of bad working conditions.
There are various protection that the law affords employees against unfair labour practices or bad working conditions. For instance, both the Constitution and the Employment Act provide that employers cannot discriminate against employees on the basis of a protected ground.
The protected grounds include freedom from discrimination based on age, sex, race, religion, and other types of discrimination that may lead to an employee opting to resign.
Further, employees are also protected against unlawful retaliation. Whistleblower laws protect employees who are constructively dismissed. This includes employees who report illegal activity, sexual harassment, workplace discrimination, or worker safety violations.