A problem may arise in proving termination in the absence of clear words by the employer.
If what the employer intends is to terminate or dismiss an employee and he achieve that without clearly expressing or communicating the intention, the burden of prove shifts to the employee to prove the existence of the alleged termination.
However, this can be done by simply construing the circumstance surrounding the termination.
Although resignation by an employee is not regarded as termination, if the resignation is induced by an act of the employer then it would qualify as termination hence availing the claimant a course of action to seek compensation.
This is commonly referred to as constructive termination. But what amounts to constructive termination in Kenya?
In Industrial Court at Nairobi, while rendering itself in Cause Number 611 9 (N) of 2009 between Maria Kagai Ligaga v Coca Cola East & Central Africa Limited, the Court noted that constructive dismissal occurs where the Employer’s behavior 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 juncture, the employer is deemed to be no longer interested in honoring the terms of the contract of employment.
The employee must demonstrate that the employer has engaged in repudiatory breach and this means that the fundamental terms of the employment contract are grossly violated to the extent that the employee has but one option, to resign.
On the other hand, the Court must be persuaded that the employee has reasons to resign beyond mere allegations of constructive termination although employer’s actions need not be coercive, threatening or in the nature of duress.
How would you tell if your employer is inducing you to resign?
The signs that an employer wants you out are usually subtle, one has to pay keen attention to the conduct, demeanor and even the choice of words by the employer to know whether it’s time to call it quits.
However, there are obvious acts by the employer that would in no uncertain terms point to the fact that your services may not be needed.
These include but are not limited to where the employer assigns the employee work or duties that are out of the scope of terms engagement.
The inducement here is usually to have the employee decline directives of the supervisor hence opening him up to disciplinary action with one objective in mind, to dismiss the employee.
The best way to go around this as 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 why you believe it could contravene the terms of the employment contract.
Take for example the case of Wetheral (Bond St.W1) Ltd v Lynn (1978) ICR 205, where the employee was required to work outside the scope of the original terms of his job.
When the work caused him to be ill, he was denied the right to discuss the problem with the employer with the consequence that he had no option but to resign. No doubt the employer’s conduct was unreasonable but it was up to the court to determine whether the employee was constructively terminated.
To reach its finding, the court employed the test whether the employer had shown through his conduct whether he no longer regarded himself as being bound by the contract.
The employer was found to have breached the contract by requiring that the employee take additional duties and denying him access to internal conflict resolution procedures. The resignation therefore automatically becomes a dismissal.
Some employers may refuse to assign work to an employee with hope that the employee would get frustrated and eventually quit the job through resignation or whichever means.
This has been found to be unlawful termination since by signing the contract of employment, the employee is entitled to work where there is work to be done. In some cases, the employer uses the same reason to dismiss the employee for abdication of duty or under performance.
The solution to this problem is usually to ask for work or assignment since this will serve as evidence of the employee’s effort to make contribution to the organization which has otherwise been frustrated by the employer.
Other employers may subject the employee to serial or numerous transfers from one work station to another or even one country to another without being given an opportunity to settle down and make career progression.
Any involuntarily resignation resulting from such conduct by the employer amounts constructive dismissal or termination. The Employee is thus entitled to damages for wrongful dismissal.
Yet in other circumstances the employer may inordinately deny an employee a right under his employment contract relating to, for example Salary increment and promotion where the same is granted to other employees of the same qualification in terms of experience and performance output.
Insubordination is another common act that other employers use to get rid of employees they do not wish to keep. Sometimes an employee faces an uphill task in proving constructive termination where the employer makes the employee’s life difficult without necessarily doing the above mentioned acts.
An example is where an employer sets unreasonably high targets for the employee and openly expressing his disapproval of the employee’s work and effort in the presence of other employees.
In this case, the employee may still claim constructive termination as a consequence of breach of implied duty of trust and confidence but he must first resign from the employment.
Note however, that the test is not the on unreasonableness of the employer’s conduct but that of the contract law.
Where the employer by his conduct breaches the contract of employment, the employee may accept the repudiation by tendering his resignation and thereafter lodge a claim for compensation under constructive termination.