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Introduction

It is quite common for an employee who is faced with investigations, interdiction or disciplinary proceedings to resign in order to avoid adverse action such as dismissal which could also result in loss of benefits and certainly to diminished employability.

In Kennedy Obala Oaga v Kenya Ports Authority, discussed below, the labour court confirmed that the Employment Act does not bar, or in any way limit an employee, from terminating their contract of employment before, during or after a disciplinary hearing.

Facts

The Claimant resigned after being heard by a Disciplinary Committee, but before the Disciplinary Committee gave its verdict.  His resignation was with immediate effect.  There was no notice period, the Claimant having opted to pay the Respondent 1-month salary in lieu of notice. The primary issue was whether Claimant’s resignation was valid, lawful and binding on the parties.

Verdict

The court held that the employer ceased to have jurisdiction to discipline the Claimant the moment he tendered his resignation letter and therefore, the Respondent could not deliver a lawful verdict arising out of the disciplinary process after termination of employment.

The court was fortified in the finding by the decision of the Labour Court of South Africa in Mtati v. KPMG (Pty) Ltd (2017) BLL 315 (LC).

Facts

The Employee tendered 2 resignation letters; the first after the Employee found out the Employer was investigating her for misconduct.  The first letter gave the Employer notice when termination would become effective.

The Employer constituted a Disciplinary Committee.  The Employee was invited to attend the hearing.  She issued a second letter of resignation with immediate effect. She challenged the authority of the Disciplinary Committee to continue with the process in light of her immediate resignation.  The Disciplinary Committee Chairperson overruled the Employee’s objection, went on with the hearing, found the Employee guilty of misconduct, and recommended her dismissal. The Employee challenged the Disciplinary Committee’s decision at the Labour Court.

Verdict

The Court held that where an Employee tenders a resignation with immediate effect, the Employer is immediately deprived of jurisdiction to continue with the disciplinary process.  The authority to discipline an employee is based on the existence of a contract of employment.  Without a contract, there is no authority.

The Difference between a resignation with immediate effect and a resignation on notice

If the Employee has given notice and is serving the notice period, the employer retains jurisdiction to discipline the employee up to the end of the notice period.

In Edwin Beiti Kipchumba v. National Bank of Kenya Limited [2018] e-KLR, it was held that resignation by an employee from employment is a unilateral act.  The Employment Act does not require the Employer to accept a notice of termination issued by the Employee, for that notice to take effect.

Therefore, if according to the resignation letter the notice is to take effect immediately, the employer has no choice but to stop any contemplated disciplinary proceedings.

Kenyan Union of Commercial, Food & Allied Workers Union v. B.S. Mohindra & Company (K) Limited [2015] e-KLR,

Facts

Dominic Kiilu the 1st grievant was employed by the Respondent on 1st February 1994 as a General Worker at a salary of Kshs.1, 495.00 per month and was working in the Export Department. In 2012 Mr Kiilu was transferred to the Purchasing Department. He resigned from his position with effect from 20th July 2009 having served for 16 years. Mr Kiilu resigned without notice as provided under the CBA. Mr Kiilu’s claim was for terminal gratuity.

Verdict

Mr Kiilu was awarded the gratuity, however, three months’ salary was deducted as he had failed to give three months’ notice of resignation.

An employer may opt to provide in very clear terms in the Human Resource Manual, that where an employee resigns during investigations or during disciplinary proceedings, they shall not be entitled to the benefits which would otherwise be payable on regular termination.

Written by: Daphne Njeri

Edited by: Anne A Babu

***THE END**

THIS ARTICLE IS COPYRIGHTED

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for close to 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. She is a repository junkie and a lover of editing.

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Comments

  1. Florence Naipanoi says:

    Amazing piece.

  2. Stella says:

    Thank Anne. Very informative article.

    Please shed some light in a situation where an empl

  3. Hezbon Michira says:

    Hi Ann,

    This is a very informative article… I need advice on how to proceed with an issue i have with my previous employer.
    I was given a termination letter on November 15th 2018 which mandated me to serve for a period of 7days.
    To the last day of service, i was requested to fill clearance forms but the HR and the Finance dont want to clear me.
    I have been denied 2 months salary and a recommendation letter.

    Kindly advice.

    1. Anne Babu says:

      The minimum notice should be one month and the dues should be paid on the last day of employment failing which the redundancy is unlawful.

  4. Phanuel says:

    This is a very informative article
    Thanks Ann

  5. Albert Ngonyo says:

    Thank you for your continued support. I’ve been an employee for 8years now in a casino and last week was provided with an amended document on resignation stating that the resignation notice for employees was slashed to one month regardless of the years you’ve served.Is this true?

    1. Anne Babu says:

      The law requires a minimum notice of one month for those paid monthly but the contract can provide for a longer period. If the employer changes the contractual provision, they should consult staff first.

  6. Bonface says:

    so much interesting

  7. Wilson says:

    I was employed on 2018 July 16th and upon employment I was given 6 months probationary period. I completed my term without any communication to be confirmed. After 9 months I applied for my leave days of which I later was invited to attend a disciplinary committee. The recommendation was no extension for my period and therefore I was served with a termination letter with 1 month liu notice. I felt I was unfairly treated since whatever reasons I was given were basically acting out of verbal instruction from GM. Am entitled to any further compensation. Wilson thika

    1. Anne Babu says:

      If the communication came 3 months after the lapse of the period of probation, I would argue that you had already been impliedly confirmed in light of the delayed communication.

  8. Edwin says:

    Dear Anne,

    This is a very informative post thanks alot, I used it somehow and also thanks to one of my former colleague who showed me this.

    Now,after tendering my notice of resignation (during my one month suspension period), my employer accepted it but in the letter, they mentioned that I should not be within the office premises (despite having stopped the process of disciplinary) during the one month notice period.

    At the same time, they are telling me to use my accrued leave days during this period. Kindly advise if they should pay for my leave days or not.

    1. Anne Babu says:

      They should not forcefully apply your leave days towards the notice period though many employers do that.

  9. Peris says:

    Quite informative

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