Should an employer approve a resignation from an employee to deem it effective?
Apudo v Azure Hotel Limited (Cause 816 of 2018) [2024] KEELRC 321 (KLR) (22 February 2024) (Judgment)
Dr. Jacob Gakeri -Judge
Significance of the case
This case has outlined that the validity of an employee’s resignation is not dependent on the employer accepting it since it is a unilateral contract.
It further acknowledges that an employee is only capable of being dismissed when the employment relationship still exists. The employment connection ends when an employee submits their resignation, and there is no right to a subsequent claim on summary dismissal.
It has also stated that if the employee breaches the contract of employment an employer may dismiss an employee without serving them a notice or issue the employee less notice than is legally required.
Additionally, it has outlined that duress exists where a party uses threats or violence to have another individual act in a way that is advantageous to them.
The case has also outlined that an employee may only utilize a claim constructive dismissal for a limited period of time. Upon lapse of the time, the employee cannot fault the employer’s actions that prevented them from fulfilling their contractual obligation.
Facts
The claimant and the respondent were in an employment relationship which was brought to an end in unclear circumstances.
Claimant’s arguments
The claimant stated that the Human Resource Manager, Mr. Wanjau had called him to his office, offered him a paper and pen and dictated to him the contents of the resignation letter while threatening him and as such, the letter was not written voluntarily. She stated that Mr. Wanjau threatened that she will not leave the office if she did not write and sign the resignation letter. She further averred that Mr. Wanjau threatened to call security if she did not sign the letter.
Respondent’s arguments
The respondent averred that the claimant wrote the resignation letter willingly and voluntarily and upon issuing the same to the human resource manager, the same was accepted. It was the respondent’s case that the claimant had been summoned to question his performance when he decided to write the resignation letter.
Issues for Determination
- Whether the Claimant was summarily dismissed by the Respondent.
- Whether the claimant resigned from employment
- Whether the claimant was constructively dismissed by the respondent
- Whether the Claimant is entitled to the reliefs sought.
Holding and reasoning of the court
The court held that the claimant had not been summarily dismissed because no evidence was adduced before court to prove that the respondent actually terminated the employment without notice or without the statutory required notice duration.
The claimant failed to prove that the letter stating that he intended to terminate his employment voluntarily was not a resignation. As a result, it was regarded as the claimant’s voluntary resignation letter. A resignation letter was deemed to take effect immediately and did not depend on the acceptance by the employer.
The claimant failed to adduce evidence to demonstrate that the conduct of the employer made it impossible to adhere to the employment contract to demonstrate constructive dismissal.
The court decided that all statutory deductions, including Pay As You Earn, are applicable to terminal dues that an employee owes.
The court held that the claimant had failed to establish her case and as such, she was not entitled to the reliefs sought except for the certificate of service.
