Mwiti v Housing Finance Company (HFC) Limited (Cause 545 of 2018) [2023] KEELRC 2659 (KLR) (30 October 2023) (Judgment)
Neutral citation:
[2023] KEELRC 2659 (KLR)
Republic of Kenya
Cause 545 of 2018
B Ongaya, J
October 30, 2023
Between
Fredrick Kiogora Mwiti
Claimant
and
Housing Finance Company (Hfc) Limited
Respondent
Judgment
1.The claimant filed the memorandum of claim on 16.04.2018 through Mutuma Gichuru & Associates. The claimant was employed by the respondent since December 2012 until 15.02.2018. He held various designations including Relationship Officer, Personal Banker, and finally as a Business Development Officer. The employment ended when the claimant resigned by the letter dated 15.02.2018. The claimant alleges that the contract of employment was constructively terminated and unfairly so. He prays for judgment against the respondent for:
2.The claimant alleged the particulars of constructive dismissal as follows:
3.The statement of defence was filed on 08.05.2018 through Maina Muiruri & Company Advocates. The respondent admitted employing the claimant as a Relationship Officer on 01.09.2014 (then at Housing Finance Company of Kenya) and the respondent took over the mortgage finance business and continued to work as a personal banker until he resigned on 15.02.2018. The respondent further pleaded as follows:
4.The claimant testified to support his case. The respondent’s witness (RW) was Gloria Lilechi, the respondent’s Human Resource Manager. The final submissions were filed for the parties. The Court has considered all the material on record. The Court returns as follows.
5.To answer the 1st issue the Court finds that the parties are in agreement that at all material times they were in a contract of employment as pleaded and as per the evidence on record.
6.To answer the 2nd issue the Court returns that the contract of service was terminated by reason of the claimant’s resignation letter dated 15.02.2018. The claimant wrote that he wished to resign from his position as a Business Development Officer effective 15.02.2018 and he requested that the one-month notice be waived. He further thanked the management for giving him an opportunity to serve the respondent company. The respondent accepted the resignation with regret as per the letter dated 26.02.2018 and the respondent offered to pay salary and allowances up to 15.02.2018 and accrued leave days.
7.To answer the 3rd issue, the Court returns that the resignation has not been established to amount to unfair constructive termination. Both parties have cited the Court of Appeal decision in Coca Cola East Africa -Versus- Maria Kagai Ligaga [2015] eKLR. The Court of Appeal stated the legal principles to determine constructive dismissal as the basic ingredients of constructive dismissal to be considered in toto included:
8.The Court has also considered the evidence. It is that the respondent initiated the disciplinary proceedings but prior to the decision being declared thereon, the claimant opted to resign. The resignation by the claimant’s own testimony was voluntary and the alleged coercion is not established at all. The claimant in cross-examination testified thus, “I was required to report any breach or fraud immediately to the Bank. Resignation of 15.02.2018 effectively terminated my employment. I signed the resignation letter. I have no evidence to show I was coerced to resign. There was handwritten paper in the room. I was alone. I have resignation letter written on a plain paper. The three present gave me the paper to write and sign before leaving the office.” By that evidence the Court finds that the resignation was voluntary and it is not established that the respondent in any manner had breached the terms and conditions of the contract of service. In view of the allegations against the claimant, it appears to the Court that the respondent was entitled to exercise the employer’s prerogative to commence and continue the disciplinary action but which aborted at the tail end of decision making by reason that the claimant opted to resign. The particulars of unfair constructive dismissal and breach of constitutional and statutory or contractual provisions are found not established at all. The respondent’s case and submissions in that regard are upheld.
9.Per the Black’s Law Dictionary (Tenth Edition) constructive dismissal or discharge means, “An employer’s creation of working conditions that leave a particular employee or group of employees little or no choice but to resign, as by fundamentally changing the working conditions or terms of employment; an employer’s course of action that, being detrimental to an employee leaves the employee almost no option but to quit.” The Court has considered the claimant’s pleadings, testimony and submissions and finds that the claimant has failed to establish that the respondent created working conditions that left the claimant with little or no choice but to resign. The disciplinary process was underway per the contract and the relevant statutory provisions. The disciplinary proceedings having aborted by reason of the resignation, the merits of the aborted proceedings appear to the Court to be remote to the actual ending of the employment relationship. While being alleged and submitted for the claimant that he had been assigned lesser and demeaning duties outside his contractual duties, the same has not been shown to have been a grievance raised while the contract of service prevailed as is found to be an unfounded afterthought. In any event, the resignation letter does not state such a grievance as precipitating the resignation and the Court considers that the claimant must be bound by the terms of his own voluntary letter of resignation.
10.To answer the 4th issue, the Court finds that constructive dismissal not having been established, the claimant has failed to justify the remedies as prayed for except the certificate of service to which he is entitled per section 51 of the Employment Act. Service pay is not due as claimed in view of section 35 of the Act and the claimant having been a member of NSSF and a contributory pension scheme. Each party to bear own costs taking into account the respective margins of success.
11.In conclusion judgment is entered for the parties for:
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS MONDAY 30TH OCTOBER, 2023.BYRAM ONGAYAPRINCIPAL JUDGE