How to tell if your employer is persuading you to resign and what to do about it
By Oscar Onyango | July 9th 2020
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
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
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
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
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
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
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
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
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
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