What is Constructive Dismissal


Have you ever felt like quitting your job because your employer or your supervisor has decided to make your working life a hell on earth? It happens in many workplaces.

Your employer decides he will not dismiss you but he will frustrate you and make life unbearable till you take the step to resign. He makes the working condition too difficult to a point where you are left with no option but to resign.

The law does not call that resignation; the law calls it Constructive Dismissal. In other words, you did not resign but you were dismissed in a constructive manner.

This means you can sue your employer and get compensation for unfair dismissal, even if you are the one who handed in the resignation letter.

Constructive dismissal is not provided for or defined in any Acts of Parliament in Kenya. It’s a matter left for determination by courts, based on case by case situation and how the question has been addressed in previous cases.

Courts have defined Constructive Dismissal as a situation where, without any justification an employer creates a situation or circumstances that technically leave the employee with no other choice but to resign. The circumstances created lead to fundamental breach of the employee’s contract.

For constructive dismissal to arise, several things must happen. First the employee must have resigned. The employee can’t talk about “dismissal” when he is still employed. And there can’t be a reference to “constructive dismissal” if the employee was actually fired with a termination letter. 

Two, there must be evidence that the resignation was as a result of the situation or the circumstances created by the employer, not any other reason.

Three, there must be evidence that the situation was created by the employer or his agents and not anyone else. 

Four, and most important, there must be proof that that situation created by the employer was such that any other employee put under the same circumstances would have resigned. There must be objective evidence that continued employment was untenable.

Gathering enough evidence to prove the situation was untenable can be quite difficult for an employee.

Take example of a female employee who is sexually harassed by the employer to a point of opting to resign. How does she gather the evidence to pin down the employer in a court case?

The best way is to start getting evidence when a red flag is raised by the employer. When the circumstances start changing at work and you detect your employer wants to force you out, it’s time to gather evidence.

Particularly that which you will not be able to compile once you leave the employment. Gather information, intelligence and documents. And when time comes to resign, write a detailed resignation letter capturing the chronology or the situation. Those are the ammunition you will use in a suit.

Leave a Reply

Your email address will not be published. Required fields are marked *