What to do when employer is inducing you to resign

Boss and employee. PHOTO | FOTOSEARCH

Constructive discharge occurs when an employee quits because working conditions have become so intolerable that any reasonable person would have no other option. The concept of constructive dismissal is, however, not expressly provided for in the Employment Act. The Act does not give a guide on constructive dismissal.

The concept has, however, received sufficient attention in the courts as reflected in the rich jurisprudence in the decided cases, setting out what can fairly be considered as general guidelines.

In the case of Maria Kagai Ligaga v Coca Cola East & Central Africa Limited, the court considered the issue and reviewed several decisions on the subject as follows. That constructive dismissal occurs where the employer’s behaviour is so intolerable that it makes it considerably difficult for the employee to continue working.

The employee initiates termination, believing himself, to have been fired. At this point, the employer is deemed to be no longer interested in honouring the terms of the contract.

Constructive dismissal has its roots in the law of contract under the doctrine of ‘discharge by breach’.

Under this doctrine, an employee was entitled to treat himself as discharged where the employer’s conduct was a significant breach going to the root of the contract. The termination would be due to the employer’s conduct. Such conduct may include unilateral reduction in pay or failure to pay the employee.

This doctrine has not been given any statutory backing in Kenya and, therefore, tests and principles developed in other comparative jurisdictions are applicable here because it is enabled by the entrenchment of a justiciable right to fair labour practices under Article 41 of the Constitution.

What test does the court use to determine whether constructive termination has occurred?

Constructive discharge is difficult to prove. Upon resignation, the employee must show that a reasonable employee who wanted to continue working would have felt forced to quit under such circumstances. Typically, the employee must show not only that working conditions were no longer tolerable, but also that the employee gave the employer an opportunity to fix the problem.

“If the employer is guilty of conduct, which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct.” The employer’s conduct is often referred to as repudiatory beach.

However, it is not enough to show merely that your 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, you must have resigned because of the actual breach — not for some other reason. You should also make it clear at the time that you regard yourself as having been “constructively dismissed”.

What behavior would amount to constructive termination?

Although a single incident would still amount to a breach of contract by the employer, there are continuing pattern of behaviour or incidents which, taken as a whole, would amount to a breach and the courts will rightly find so.

For example, there may be a history of minor bullying and harassment.

If there is a continuing pattern of behaviour, the last straw which leads an employee to resign must relate to the previous acts, so that, added together, they all amount to a total breach of trust and confidence.

There are obvious acts by employers that would point to the fact that they may not want an employee around.

For example, a manager who says, “I’m going to make your life here so miserable till you quit,” then proceeds to do just that, has probably constructively discharged the employee.

DISCIPLINARY ACTION

Other acts may include where the employer assigns an employee work or duties that are out of the scope of the contract of employment.

The inducement here is usually to have the employee decline directives of the supervisor hence opening him up to disciplinary action with the objective of dismissing the employee.

The best way around this for an employee is to bring it up with the employer through a formal letter. Cite the difficulties you are experiencing in complying with the new directive and the reasons you believe it could contravene the terms of the employment contract.

Some employers may refuse to assign work to an employee with the hope that the employee would be frustrated and eventually quit the job through resignation or whichever means.

The solution to this problem is usually to ask for work or assignment since this will serve as evidence of the employee effort to make contribution to the organisation that has otherwise been frustrated by the employer

Lastly, insubordination is another common avenue that rogue employers have used in getting rid of employees they do not wish to keep.

Sometimes an employee faces an uphill task in proving constructive termination where the employer makes life difficult without necessarily doing the above mentioned acts. If you find yourself in this situation, reach out to a lawyer for legal advice.

The writer is associate, Simiyu Wekesa Advocates.

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