Introduction

Billy Collins, an American Poet once said that: “The pen is an instrument of discovery rather than just a recording implement. If you write a letter of resignation or something with an agenda, you’re simply using a pen to record what you have thought out.” Indeed, in a workplace, an employer may be faced with circumstances that may lead him/her to pen a resignation. Such resignation may be voluntary or involuntary.

When an action is produced with the involvement of thoughts, they are called voluntary actions. However, actions that take place without the consciousness or willingness of an individual, are called involuntary actions. 

In recent times, there has been a litany of cases arising from resignation. In such cases, the Claimants have pleaded that they did not resign voluntarily and thus seek compensation from the Courts. The Courts have thus expounded on the doctrine of constructive dismissal and awarded such employees compensation as provided for under the Employment Act, 2007. In other cases, the courts have interrogated the resignation and found out that the resignation was voluntary and thus not award such employees any compensation under the Act. Recently, the Court expounded on the principle of rescission of a resignation letter and after interrogating the facts leading to the resignation and rescinding, find that the resignation was vitiated by rescission and thus declare such employees as being still in employment.
This paper will thus address the following three issues:

  1. Voluntary resignation viz-a-viz constructive dismissal 
  2. Rescission of resignation letter
  3. Remedies available 

(a) Voluntary resignation viz-a-viz constructive dismissal 

The Black’s Law Dictionary (9th Edition) defines constructive dismissal as:
“A termination of employment brought about by the Respondent making the employee’s working conditions so intolerable that the employee feels compelled to leave.”

Constructive termination is now a concept now appreciated and applied by the Employment and Labour Relations Court as it occurs within employment and labor relations. Constructive dismissal, also called Constructive discharge, occurs when employees resign because their employer’s behavior has become so intolerable or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee to resign rather than outright firing the employee, the employer is trying to effect a constructive discharge. 

In the case of Emmanuel Mutisya Solomon versus Agility Logistics, Cause No.1448 of 2011, the court held that the basics are that constructive dismissal may be defined as a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee to such an extent that the employee has no other option available but to resign. 
In the case of Nathan Ogada Atiagaga vs. David Engineering Limited Cause No. 419 of 2014 the court held that:

“Constructive dismissal occurs when an employee resigns because their employer’s behavior has become so intolerable or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee to force the employee to resign rather than outright firing the employee, the employer is trying to effect a constructive discharge.”

The concept of constructive dismissal is underpinned on the notion that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or highly likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Breach of that implied term will entitle the employee to treat him or herself as wrongfully dismissed.

In the Australian case of Mohazbad versus Dick Smith Electronics [1995] IRCA 272, the Industrial Relations Court of Australia stated that an important feature is that the act of the employer results directly or consequentially in the termination of employment, and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.
Therefore, constructive termination can be summarised as that in the absence of any justifiable reasons for dismissal, the employer proceeds to “construct” circumstances that will bring about a dismissal. the employer, without reasonable and proper cause, conducts itself in a manner calculated or likely to destroy it, or seriously damage the relationship of confidence and trust between employer and employee.

Test for Constructive dismissal
In the South African case of Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC)the Labour Appeals Court stated that the first test in a case for constructive dismissal was whether, when resigning, there was no other motive for the resignation, in other words, the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct. It went further to state that when an employee resigns and claims constructive dismissal, he is in fact stating that under the intolerable situation created by the employer, he can no longer continue to work, and has construed that the employer’s behavior amounts to a repudiation of the employment contract. So, in view of the employer’s repudiation, the employee terminates the contract.

The test to be met by an employee claiming to have been constructive dismissed were further elucidated in Marete vs. Attorney General [1987] KLR 690 where it noted that constructive dismissal demands the employee demonstrates that his resignation was justified. Other collateral issues that must be shown by the employee are: 

  1. That the employer made a fundamental change in the contract of employment, and that such change was unilateral; 
  2. That the situation was so intolerable the employee was unable to continue working; 
  3. That the employee would have continued working had the employer not created the intolerable work environment; and 
  4. That the employee resigned because he did not believe the employer would abandon the pattern of creating an unacceptable work environment.

The burden of Proof in a Constructive dismissal case

As stated earlier, a situation at the workplace, that renders the continuation of employment for the Employee difficult, to the extent that the Employee has no option but to resign, amounts to constructive dismissal. Therefore, the burden of proof is on an employee.

In Max Masoud Roshankar & Another v. Sky Aero Limited [2015] e-KLR, the Court further held that in bringing such a dispute, it is for the employee to prove that the employer was responsible for introducing the intolerable condition and for the employee to prove that there was no other way of resolving the issue except for resignation. In other words, it is not for the employer to show that he did not introduce any intolerable condition it is for the employee to show that indeed there were intolerable conditions, frustrations breaches that trust and confidence supposed to be enjoyed in a conducive workplace environment dissipated and thus repudiation of the contract.

In addition to the above, the Court of Appeal in Coca Cola East and Central Africa Limited vs Maria Ka-gai Ligaga[2015]eKLR, the Court found out that the Employee, who had serially been transferred from one country and region to another; who was never given an opportunity to settle down by her Employer and make career progression; and who resigned involuntarily, to have been constructively dismissed. It had the following to say about the burden of proof and the criterion for constructive dismissal of an employee:
“The criterion to determine if constructive dismissal has taken place is a repudiatory breach of contract through the conduct of the employer. The burden of proof lies with the employee. The employer’s conduct must be such as when viewed objectively, it amounts to a repudiatory and fundamental breach of the contract obligations.”

Therefore, in a constructive dismissal case, the employee initiates termination, believing himself, to have been fired. The Employer is deemed to no longer be interested in honoring the terms of the contract of employment. The Employee must therefore demonstrate that the Employer has engaged in repudiatory breach and Court must be persuaded that the Employee has reason to resign. Employer’s actions need not be coercive, threatening, or in the nature of duress. 

(b) Rescission of a resignation letter
A notice of resignation is basically a notice of termination of employment, given by the Employee to the Employer. It is a unilateral act and under the Employment Act 2007, a notice of termination of employment does not have to be accepted by the recipient Party, to become effective. Further, as a general rule, an employee does not have the right to unilaterally withdraw his resignation once given.

However, case law from different comparative jurisdictions however, is that an employee may withdraw a notice of resignation, where special circumstances exist, relating to the context in which resignation occurred. The Irish Employment Tribunal in UD 946/2007, McManus v. Brian McCarthy Contractors accepted that a letter withdrawing a notice of resignation made by the Employee was binding on the employer, having taken stock of the context in which resignation was offered.   

Communication of the withdrawal of the resignation notice
It should be noted a withdrawal of the notice of resignation should be communicated to the employer, as soon as possible. Where an employee makes the decision on the heat of the moment, and the situation is still retrievable, it has been held that it would be unreasonable for an Employee not to be allowed to recall his decision to resign.

Indeed, in the UK case Kwik-Fit [GB] Limited v. Lineham [1992] IRLR 156, it was held if an employee resigns in the heat of the moment, and special circumstances exist, the employer should investigate the matter and ascertain the employee’s true intentions. Special circumstances, it was held, may include pressures on the employee or the employee’s personality. 

For withdrawal of resignation to be acceptable, it must be made within a reasonable time from the date of resignation. The period between resignation and rescission of resignation must be short. The best practice taken from a succession of commonwealth judicial pronouncements is that the Employer should allow a cooling-off period, to ascertain the circumstances of resignation. Timing of withdrawal is important, where resignation is made in the heat of the moment. If the withdrawal of resignation is made weeks, months, or years after resignation, it is likely not to be endorsed by the Courts.

The court is bound to interrogate  the circumstances leading to Resignation
Acceptance of resignation by the Employer does not bar the Employee from revoking his decision, where it can be shown the decision was made on the spur of the moment, and special circumstances exist. The Court should go beyond the mere acceptance at face value, that because resignation has been accepted, the contractual relationship has been severed. 

Thus, the prior position held by the Courts that if the employee has resigned, with clear intention to do so, he is bound by his decision and more so where the employer has accepted his resignation; and that the Employee can only be accepted back in employment if his Employer consents to the Employee’s decision to withdraw resignation is no longer good law.  

This was the earlier position of the Court as expounded in William Kariuki v. Kenya Civil Aviation [2008], to the effect that acceptance of resignation brings to an end the contract of employment. This case did not deal with aspects on the spur of the moment of resignation, made within the context of special circumstances. If the Employee has resigned, with clear intention to do so, he is bound by his decision, more so where the Employer has accepted the resignation. The decision above was based on the fact that a clear and unequivocal resignation, which has been accepted by the Employer deprives the Employee of locus penitential [right to withdraw an offer of resignation after it has been accepted].

However, as noted above, this is no longer good law. Hon. Rika in Edwin Beiti Kipchumba v National Bank of Kenya Limited [2018] eKLR noted inter-alia that: 

“… disputes on resignation are highly fact-driven. The best approach is resolving such disputes, is to examine each case on its own facts. The test is whether a reasonable person, would have understood the Employee’s statements and actions, surrounding resignation, to show the Employee to have made a decision to clearly and unequivocally end the employment relationship.”

Does a letter of resignation constitute clear and unequivocal evidence, that the Employee has made a decision to end the employment relationship? In the Canadian Case [British Columbia] decision, Templeton v. RBC Dominion Securities, Inc. 2005, Carswell Nfld, 216 at paragraph 46, the Court had this to say about resignation letter and resignation decision: 

 ‘’It is important to distinguish between a letter of resignation and resignation. A resignation is the decision to terminate the relationship, or equally, a fact or circumstance which unequivocally reflects that decision. A letter of resignation is simply evidence-cogent evidence- of the Employee’s decision to end the relationship. But it is no more than that; a letter of resignation is not in itself, the Employee’s termination of employment.’’

The Court analyses the facts and found out that the employee resigned in the heat of the moment after considerable humiliation by his Manager. Further, that he was coerced by the Line Manager to resign to save face due to the fraud that had been perpetrated by Top Managers. In arriving at the decision that the Claimant was not constructively dismissed and that he had rescinded his resignation letter, the Court held:

“60. The facts in the present dispute do not persuade the Court that the Claimant was constructively dismissed. First, he disputes that he originated the decision to resign. He does not own the decision but attributes it to coercion, threats, other forms of duress, and promises for a fresh job, made by Acting Directors Koech and Alice. He does not say he resigned, because he believed himself to have been fired.  He suggests he was duped, or compelled by Koech and Alice into writing the resignation letter.

  1. Second, the Claimant rescinded his letter of resignation. This was just a day after he purported to resign. By doing so, he indicated that he could go on working for the Respondent. He ceased to believe that the working condition was so intolerable and irredeemably hostile, that he could not go on working. By rescinding his decision, he no longer could sustain the argument that the Respondent was in repudiatory breach of the contract of employment.
  2. In the view of the Court, for resignation from employment to amount to constructive dismissal, it must be unequivocal. An Employee cannot rescind his resignation decision almost immediately it is made, and sustain a claim for constructive dismissal.”

It should be noted that resigning in the heat of the moment may be due to coercion or duress. In Steve Mutua Munga v. Homegrown Kenya Limited & 2 Others [2013] e-KLR, the Court adopted the definition of the term coercion as given in Black’s Law Dictionary 8th Edition, to comprise compulsion by physical force or threat of physical force. Elements of coercion also include where a person acts out of fear or actual or threatened confinement. Where such resignation occurs and is rescinded immediately as stated in the foregoing case, such rescission vitiates the resignation letter and the employee will be deemed to be still in an employment relationship. 

(c) Remedies available 

Where Courts find that an employer was constructive dismissed, it will award the said employee appropriate compensation under the Act. For instance, in Paul Chitechi Mwaro v Sasini Limited & another [2015] eKLR Radido found out that the resignation of the Claimant was not voluntary and therefore he was constructively dismissed. He proceeded to award him damages.
However, where an employer rescinds his resignation and is reinstated as was in the case of Edwin Beiti Kipchumba, then such an employee cannot sustain a claim for constructive dismissal for the reason that by rescinding such a decision, an employee can no longer sustain the argument that the employer was in repudiatory breach of the contract of employment.

Conclusion 
An employee may withdraw a notice of resignation, where special circumstances exist, relating to the context in which resignation occurred. Such a withdrawal of the notice of resignation should be communicated to the employer, as soon as possible. Where an employee makes the decision in the heat of the moment, and the situation is still retrievable, it would be unreasonable for an Employee not to be allowed to recall his decision to resign. Timing of withdrawal is thus important, where resignation is made in the heat of the moment. 

Lastly, an acceptance of resignation by the employer does not bar the employee from revoking his decision, where it can be shown the decision was made on the spur of the moment, and special circumstances exist. The duty of the Court is to go beyond the mere acceptance at face value and investigate whether special circumstances existed at the time the employer tendered his resignation letter and later rescinded it. 

This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact Caxstone Phelix Kigata vide Caxstone@wamaeallen.com

About the author

Partner at Wamae & Allen

Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.

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