How to resign from your job

James WaNjeri - Advocate

Why do employees resign from their jobs? The answers to this question can be varied. MIT Sloan’s recent study (2022) analyzed 34 million employee profiles to understand what drove the Great Resignation in the United States, as it has been called.

Their research showed that a toxic corporate culture is 10.4 times more powerful than compensation in predicting a company’s attrition rate than its industry.

In their analysis, the leading elements contributing to toxic cultures include failure to promote diversity, equity, and inclusion; workers feeling disrespected; and unethical behavior.

Some signs of a toxic work environment include; bullying at work, narcissism by superiors, lack of boundaries, withholding work and tasks from a team member, lack of communication or negative communication, high turnover, a fear of retribution, and a fear of speaking candidly, among other signs. A toxic environment affects the ability of the employee to execute their duties well. Luckily for employees, the law has a remedy for those who find themselves victims of toxic work environments.

Constructive dismissal can be as a result of working conditions or when an employer breaches fundamental terms of contract. In Milton M Isanya versus Aga Khan Hospital Kisumu (2017) eKLR, the court defined constructive dismissal as

“..the desire to resign…from the employee as a result of a hostile working environment or treatment by the employer. A constructive dismissal occurs where the employer does not express the threat or desire to terminate employment but frustrates the employee to the extent that the employee tender’s resignation.”

Rights of the Employee

Under the law, where an employer’s conduct amounts to a significant breach that goes to the root of the contract, or their conduct shows that the employer no longer wishes to be bound by one or more essential terms of the contract, the employee should automatically consider themselves discharged from performance of that contract.

What are some examples of such conduct? Failure to pay you a salary, failure to give you work to do, taking away the resources needed by the employee to carry out the work, withholding benefits, indefinite suspension from work etc.

Such actions amount to a significant breach of the employment contract because they make it impossible for employees to carry out their duties. Employees facing constructive dismissal are entitled to leave their post without any notice or at the end of the notice period, if they give any notice.

Employees facing constructive dismissal are entitled to leave their post without any notice, and if they give any notice, at the end of their notice period. The Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Lugaga [2015] eKLR set a two-part test that will guide the Court to determine whether one is entitled to leave under constructive dismissal.

I- The employer making a unilateral alteration or breach of the employment contract to the detriment of the employee - Contractual test

ii. The employer making or otherwise permitting working conditions of the employee to be intolerable for him to continue working - Unreasonable test

The following are the guiding principles developed by the Court of Appeal when addressing a claim for constructive dismissal.

a. What are the fundamental or essential terms of the contract of employment?

The court will begin by looking at the contract’s terms to determine whether the employer’s conduct should be dealt with under constructive dismissal.

b. Is there a repudiatory breach of the contract’s fundamental terms through the employer’s conduct?

A repudiatory breach is a significant breach of contract which goes to the core of a contract. The effect of that breach is that it deprives the innocent party of the benefit that the contract was intended to provide them. The conduct of the employer must cause this.

c. The employer’s conduct must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

d. An objective test will be applied to evaluate the employer’s conduct.

The court will look at the Employer’s conduct objectively to determine whether it meets the conditions for constructive dismissal. Not all conduct can be classified under constructive dismissal.

e. There must be a causal link between the employer’s conduct and the reason for the employee terminating the contract, i.e., causation must be proved.

The employee must show that his reason for terminating the contract was directly caused by the employer’s conduct and not because of other considerations.

f. An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.

g. The employee must not have accepted, waived, acquiesced, or conduct himself to be estopped from asserting a repudiatory breach; the employee must terminate the employment relationship within a reasonable time pursuant to the breach.

This is a crucial element. An employee should decide to resign as soon as the employer’s conduct occurs and nothing is done, despite a complaint being raised. If you continue in your job despite the employer’s conduct, then under the law, you have waived the breach, accepted the performance, and continued with the contract.

h. The burden to prove a repudiatory breach or constructive dismissal is on the employee.

As an employee, you must ensure that you have evidence of the employer’s conduct. Email correspondence and complaints about the conduct are some of the things that will be taken as evidence. It is your responsibility to prove that those facts existed at the time.

i.   Facts giving rise to repudiatory breach or constructive dismissal are varied.

Due to the ever-changing dynamic of work relationships and the unique working conditions, the Court will look at each case on its facts to determine if there is constructive dismissal.

What you should not do

Employees should refrain from issuing resignation letters where they thank the organization for the opportunity to work and praise them for the excellent working conditions. Such a letter neutralizes the claim for constructive dismissal since, as we have seen, an employee resigns due to unfavorable working conditions created by the Employer. The resignation letter, if written, should clearly state the reasons why the employee felt compelled to resign. This letter will form part of the evidence that is produced before court.

In some organizations, HR personnel have been known to force employees to write such resignation letters, and an employee should reject this. Such employers will threaten to withhold payments that are due and owing to the employee, as a negotiating tactic. Such an action is illegal under the law and an employee can sue to recover what was owed. The danger of such a letter, especially one dictated by the employer, is that the employer can easily show that you left employment by mutual consent and defeat your claim for constructive dismissal. Should the employer wish to settle the matter with you out of court, you are advised to engage the services of Counsel who is well-versed in employment matters to ensure that your interests are secured. At JN Advocates, we have lawyers who have built expertise in resolving employment disputes.

Remember, under constructive dismissal; you can resign without issuing notice as the contract is held to have been materially breached by the employer by their conduct.

Reliefs

Should you choose to sue an employer claiming constructive dismissal and you are successful, what reliefs will the court give you? The Employment Court is a human rights Court that is mandated to ensure that parties to an employment contract are on an equal footing.  Once the Court finds that you were a victim of constructive dismissal, it will hold that to have been an unfair labor practice. Under the Employment Act, damages for unfair termination will be calculated based on your monthly salary multiplied by the months the court deems fit. This can range from one month to a maximum of 12 months.

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The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.