[2023] KEELRC 2124 (KLR)

Muia v Chase Bank (Kenya) Limited (In Receivership) & another (Cause 73 of 2015) [2023] KEELRC 2124 (KLR) (21 September 2023) (Judgment)

Neutral citation: [2023] KEELRC 2124 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 73 of 2015

L Ndolo, J

September 21, 2023

Between

Terry Njagi Muia

Claimant

and

Chase Bank (Kenya) Limited (In Receivership

1st Respondent

Sbm Bank Kenya Limited

2nd Respondent

Judgment

1. The issue in dispute as stated by the Claimant in her Memorandum of Claim as amended on November 17, 2021, is ‘unfair and un-procedural termination of employment on June 21, 2014 and the 1st Respondent’s failure to remit contributions to the Liberty Pension Scheme.’

2. The 1st Respondent’s defence is contained in its Reply as amended on May 23, 2022. The 2nd Respondent’s line of defence as stated in its Memorandum of Reply dated March 18, 2022, is that it did not have any employment relationship with the Claimant.

3. The matter went to full trial where the Claimant testified on her own behalf. Geoffrey O Nyakundi testified for the 1st Respondent and Kevin Kimani testified for the 2nd Respondent.

The Claimant’s Case 4. In her Memorandum of Claim as amended on November 17, 2021, the Claimant states that she was employed by the 1st Respondent on November 24, 2010. She held various positions, culminating with her final posting as Relationship Officer-Money Transfer.

5. The Claimant claims to have had a clean employment record until June 21, 2014, when the 1st Respondent’s Officer allegedly coerced her to resign. The Claimant accuses the 1st Respondent of covert hostility, which forced her to resign from employment.

6. The Claimant further accuses the 1st Respondent of failing to enrol her to its Pension Scheme upon her confirmation. The Claimant states that she did not join the Pension Scheme until April 1, 2014.

7. The Claimant avers that sometime in February 2016, the Central Bank of Kenya placed the 1st Respondent under receivership, which action caused the 1st Respondent to lose control over its assets and liabilities.

8. The Claimant adds that vide a press release dated January 5, 2018, the Central Bank of Kenya accepted a binding offer by the 2nd Respondent for the acquisition of the 1st Respondent, by which the 2nd Respondent would acquire 75% of the value of the deposits under moratorium while the 1st Respondent would retain 25% of the value of the moratorium deposits. According to the Claimant, the 2nd Respondent would also take over staff and branch operations transferred from the 1st Respondent.

9. The Claimant seeks the following remedies:a.A declaration that the termination of her employment by the 1st Respondent was unfair, un-procedural and in breach of her contract of employment;b.A declaration that the Respondents’ failure to remit pension was in breach of the employer’s obligations and contract of employment;c.12 months’ salary in compensation;d.An order directing the Respondents to remit the total pension contributions in arrears tabulated from 1st April 2012;e.Costs plus interest.

The Respondents’ Case 10. In its Reply as amended on May 23, 2022, the 1st Respondent confirms that the Claimant was its employee before its placement under receivership. The 1st Respondent adds that the Claimant held various positions from November 24, 2020 to July 24, 2014.

11. The 1st Respondent denies the Claimant’s claim that her employment was unfairly or un-procedurally terminated.

12. The 1st Respondent further denies that it breached the Claimant’s employment contract by failing to remit her pension contributions.

13. The 1st Respondent concedes that the Claimant served with diligence and dedication thus receiving various bonuses, salary reviews and promotions.

14. The 1st Respondent denies the allegation that the Claimant was coerced to resign and asserts that the Claimant resigned of her own volition, upon which she was released and paid all her dues. She was also issued with a Certificate of Service.

15. The 1st Respondent admits that the Claimant was to be enrolled into its Pension Scheme upon confirmation as per the contract of employment dated November 23, 2010. However, due to an unprecedented oversight, the pension contributions were not remitted between March 26, 2012 and April 1, 2014.

16. The 1st Respondent states that having only learnt of the anomaly through the Claimant’s claim, it had since remedied the situation by remitting the total pension contributions due to the Claimant, inclusive of interest, to the Pension Scheme.

17. In its Memorandum of Reply dated March 18, 2022, the 2nd Respondent states that there was never an employer-employee relationship between itself and the Claimant.

18. The 2nd Respondent therefore challenges the jurisdiction of this Court to entertain the Claimant’s claim against it. The 2nd Respondent adds that the Claimant’s Memorandum of Claim does not disclose any cause of action against it.

19. The 2nd Respondent maintains that it was not privy to the employment relationship between the Claimant and the 1st Respondent.

20. The 2nd Respondent concedes that it acquired the following assets from the Receiver of the 1st Respondent:a.75% of the value of deposits that were under moratorium at the time the 1st Respondent was placed under receivership;b.Transfer of staff and branches of the 1st Respondent’s operations.

21. The 2nd Respondent asserts that it never took up any of the 1st Respondent’s liabilities.

22. It is the 2nd Respondent’s case that it is not liable for any loss to the Claimant and any award in this case can only be made against the liquidators of the 1st Respondent, with the Claimant ranking as an unsecured creditor in the hierarchy of creditors.

23. The 2nd Respondent challenges the jurisdiction of the Court to deal with the claim for pension which it states is a preserve of the Retirement Benefits Authority and the Retirement Benefits Tribunal.

Findings and Determination 24. There are three (3) issues for determination in this case:a.Whether the Claimant has made out a case of constructive dismissal;b.Whether the 2nd Claimant is properly joined in these proceedings;c.Whether the Claimant is entitled to the remedies sought.

Constructive Dismissal? 25. The Claimant’s case is that the 1st Respondent forced her out of employment and the 1st and 2nd Respondents maintain that the Claimant voluntarily resigned from the 1st Respondent’s employment.

26. The law is now settled that for an employee to prove constructive dismissal they must first demonstrate conduct by the employer that made the work environment intolerable and second, link the employer’s conduct to the resignation.

27. In Nathan Ogada Atiagaga v David Engineering Limited (Cause No 419 of 2014) constructive dismissal was defined in the following terms:“Constructive dismissal occurs when an employee resigns because their employer’s behavior has become so intolerable or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee to force the employee to resign rather than outright firing the employee, the employer is trying to effect a constructive discharge.”

28. In the now famous case of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR the Court of Appeal established the following principles to be considered in determining claims of constructive dismissal:a.What are the fundamental or essential terms of the contract of employment?b.Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?c.The conduct of the employer 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 is to be applied in evaluating the employer’s conduct.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.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 conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach.h.The burden to prove repudiatory breach or constructive dismissal is on the employee.i.Facts giving rise to repudiatory breach or constructive dismissal are varied.

29. In its decision inStella W Muraguri v Edward Kamau Muriu & 4 others [2022] eKLR this Court stated as follows:“The threshold for constructive dismissal is achieved where the involuntary resignation has a direct causal link with the employer’s conduct, which may reasonably be described as intolerable.”

30. The Claimant’s resignation letter dated June 21, 2014 states as follows:“To the Human ResourceChase Bank KenyaPO BOX 66049-00800NairobiJune 21, 2014Dear Sir/MadamRe: ResignationI am writing to inform you of my decision to resign with immediateeffect.I appreciate the interaction and opportunities I have had.I wish the Company all the best for the future.Yours sincerely,(signed)Terry Njagi Muia”

31. Neither the resignation letter nor the Claimant’s testimony before the Court disclosed any acts by the Respondents that may have caused the Claimant to resign. In the absence of any such evidence, the only conclusion to make is that the Claimant has failed to prove constructive dismissal. Her claim for unlawful and unfair termination of employment must therefore fail.

32. In response to the claim for unremitted pension contributions, the 1st Respondent produced an updated statement showing that the missed contributions had been remitted to the Pension Scheme. There is therefore nothing more to say on this issue.

Final Orders 33. In light of the foregoing findings, I do not find it necessary to determine the issue of the 2nd Respondent’s joinder.

34. Finally, the Claimant’s entire claim fails and is dismissed.

35. Each party will bear their own costs.

36. Orders accordingly.

DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER 2023LINNET NDOLOJUDGEAppearance:Mr. Walela for the ClaimantMr. Cheptumo for the 1st RespondentMr. Omino for the 2nd Respondent