[2023] KEELRC 2681 (KLR)

Ndegwa v Kenya National Union of Teachers (Cause 260 of 2020) [2023] KEELRC 2681 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2681 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 260 of 2020

SC Rutto, J

October 27, 2023

Between

Jacinta W Ndegwa

Claimant

and

Kenya National Union Of Teachers

Respondent

Judgment

1. The Claimant brought the instant suit through a Memorandum of Claim which was filed on 24th June, 2020. It is the Claimant’s case that she became a National Executive Committee (NEC) member of the Respondent Union in 2006. She was elected as a 2nd National Women Representative in 2011 and was re-elected to the same position in 2016. The Claimant further avers that after her election in 2011, the Respondent Union gave her a letter of employment as a full-time 2nd National Women Representative with effect from 1st July 2011. She continued as such after the 2016 elections.

2. Citing a series of events that apparently commenced on 29th April 2019 or thereabout, the Claimant avers that there were efforts to force her out of office and work for unclear reasons but which seemed to be linked to her association with the Kenya Women Teachers Association (KEWOTA). She termed the work environment at the time as being toxic, hence her resignation on 25th June 2019. It is on account of the foregoing reasons that the Claimant seeks against the Respondent a declaration that she was constructively dismissed from work on 5th November 2019. She further seeks an order compelling the Respondent to pay her the sum of Kshs 46,533,980. 70 being salary for July to October 2019, notice pay, salary for 17 months, outstanding leave pay, unremitted pension, gift of a car and maximum statutory compensation equivalent to 12 months salary.

3. The Respondent opposed the Claim through its Statement of Response dated 4th July 2022. The Respondent avers that the Claimant was the author of her own misfortune since she was involved in the operations of an association whose roles were in direct conflict with those she performed in the service of the Union and were well covered in the list of duties she was assigned to. The Respondent further avers that her conduct was not one that amounted to a disciplinary issue warranting an appearance before the NEC for disciplinary proceedings. According to the Respondent, it did not terminate the Claimant but rather the same flowed from her voluntary act. Consequently, the Respondent denies that it unlawfully and unfairly terminated the Claimant.

4. During the trial which proceeded on 26th April 2023, both sides called oral evidence.

Claimant’s case 5. The Claimant testified in support of her case and at the outset, sought to adopt her witness statement to constitute her evidence in chief. She further produced the list and bundle of documents filed alongside her Claim as exhibits before Court.

6. The Claimant stated that on 29th April 2019, the Secretary General of the Respondent Union, Hon. Wilson Sossion, issued a circular to all Executive Branch Secretaries to the effect that an association of which she is a member and the Treasurer, Kenya Women Teachers Association (KEWOTA), from 2007, was undermining the Respondent and that she (Claimant) must cease to be an official of the same. The circular was copied to two National officials, NEC members, Branch Chairmen, and Treasurers. She was not given a copy of the said circular.

7. It was the Claimant’s evidence that on 14th May 2019, Hon. Sossion wrote to her about her involvement with KEWOTA and ordered her to cease being an official immediately and commit that in writing and serve him with the letter on or before 18th May 2019 and also deregister herself from the Registrar of Societies and submit the change of name to his office, otherwise she ceased to be an official of the Respondent union with effect from 29th April 2019.

8. The Claimant further stated that she proceeded on her annual leave in mid-May 2019 and upon resumption of work on 25th June 2019, she found the locks to her office door changed a second time. The first time was just before she commenced her leave. Therefore, she could not access her office and perform her duties as an elected official and employee of the Union. Efforts to get a key to her office were fruitless as she was told the Secretary General personally went with the key. No reasons were given as to why her office was locked.

9. She further averred that on the same day, she came across (on the social media) a circular from the Secretary General to all Branch Executive Secretaries dated 25th June, 2019 indicating that the Respondent Union Gender desk which she was heading shall be henceforth headed by Madam Rosalia Mkanyala the 2nd Vice National Chairman. That the circular was copied to two National officials, NEC members, Branch Chairman, Treasurers and Branch Women representatives, but she was not given a letter to this effect. In the Claimant’s view, her duties were taken away from her without notice and without any reason.

10. In effect she was dismissed or terminated from her service which members of the Respondent union through the 2016 Annual Delegates Conference elected her to serve up to 2021 (5 years). She termed this contrary to Article 5(4) and also Article 6(11) of the union's constitution.

11. The Claimant further averred that there were efforts to frustrate her, embarrass her, humiliate her and to force her out of office and work for reasons which were not clear but which were linked to her association with KEWOTA. She contends that it is her constitutional right to associate and to belong to a trade union of choice.

12. According to the Claimant, the efforts to force her out bore fruit as she was under immense pressure from the office of the Secretary General and from his public utterances geared towards causing her to be removed from office by the Union and to be ridiculed by fellow Union officials both at the National and branch level and which incited teachers against her, especially on social media.

13. That she suffers from hypertension which was made worse by the pressure she was undergoing and her health could not take it anymore. In addition, she also feared for her safety and or life. The working environment had become toxic. Therefore, she resigned on 25th June, 2019.

14. She further contends that despite service, the Respondent did not get back to her on whether her resignation had been accepted or not, forcing her to seek legal advice and a letter was written to the Union on 28th October 2019.

15. On 6th November 2019, her advocates received a letter from the Respondent indicating that her resignation took effect from the date of submission of her letter and that her terminal benefits were being processed. To date she has not received any response from the Union and or her terminal benefits.

Respondent’s case 16. Mr. Idris Aden Ibrahim, testified on behalf of the Respondent as RW1. He identified himself as the Respondent’s Executive Officer and similarly, he adopted his witness statement to constitute his evidence in chief. He further produced the list and bundle of documents filed on behalf of the Respondent as exhibits before Court.

17. It was RW1’s evidence that in her position as the 2nd National Woman Representative, the Claimant was expected to perform the responsibilities assigned to her by the Respondent and these included, advocating for the rights of female members, handling issues touching on the position of the women at the work place, coordinating the operations of the Gender Desk, coordinating the activities of the School Related Gender Based Violence (SRGBV) programme, representing the Respondent in Branch Annual General Meetings among other duties as was instructed by the Secretary General on a day to day basis.

18. That the Claimant together with other former officials of the Respondent formed an association called KEWOTA. The Association was founded in the year 2007. However, its existence came to the attention of the Respondent in 2019 when the Respondent received complaints from its female members. On investigation it was discovered that KEWOTA was in existence and the Claimant carried out her duties in her capacity as the Treasurer.

19. The Association formed by the Claimant and the other female members has its focus on women empowerment, advocating for female teachers eradicating SRGBV, training of female members on Gender Based Violence among other objectives. Through this organization, KEWOTA provided similar services to the female teachers as already mandated by the Respondent resulting in a conflict of interest.

20. The Respondent received massive complaints from its members about the activities of KEWOTA and the conflict of interest which was manifest due to the similarity of officials, and this necessitated it to issue a Circular Ref. No. KNUT/CIRC/122/14/2019 giving the position of the NEC on the registration of Association Groups and Unions.

21. The said circular prohibited the formation of any association meant to carry out any function as those already covered by the Respondent as the same would erode its purpose and functions.

22. The Respondent then received more complaints from its female members who were aggrieved by the deductions made by KEWOTA and specifically attributed the same as being a contrived scheme by the Respondent to fetch more subscriptions as the officials in KEWOTA were the same as those occupying positions in the Respondent.

23. The Respondent's then Secretary General deeming such concerns to bear serious character assassination, issued another circular Ref. No. KNUT/CIRC/122/23/2019 dated 20th June 2019 followed by a reminder circular Ref. No. KNUT/CIRC/122/24/2019, instructing the branches to forward supporting documents to assist in the institution of legal proceedings against KEWOTA for illegal deductions.

24. That despite the concerns of the Respondent on the operation of KEWOTA and the impact it had on the Respondent and its members, the Claimant continued to run KEWOTA prompting the then Secretary General to summon her for a meeting on 14th May 2019.

25. Following the deliberations in the meeting, a resolution was arrived at whereupon the Claimant was required to cease and desist from running an association that was in direct conflict with the operations of the Respondent.

26. RW1 further stated that the then Secretary General realizing that there was a conflict of roles as the services the Claimant performed in the service of the Respondent were substantially the same as those she offered at KEWOTA, decided in his capacity through a circular KNUT/CIRC/122/25/2019 dated 25th June 2019 to reallocate the duty of heading the Gender Desk from the Claimant to another person.

27. With regards to the Claimant’s assertion that she was locked out of her office, RW1 stated that the office is normally locked and opened by the caretaker of the building and not the Secretary General. That if the allegation is true, all the Claimant had to do, was to approach the Secretary General and report the conduct which she never did.

28. RW1 further averred that the Claimant tendered her resignation on 25th June 2019 without giving notice to the Respondent as required by law but it was gracious enough to accept it.

Submissions 29. Upon close of the trial, both parties filed written submissions through their respective counsels. It was submitted on behalf of the Claimant that she had served diligently for 23 years as a full time official without any warning and or disciplinary issue and or charge of underperformance and or poor performance or misconduct. In further submission on behalf of the Claimant, it was stated that there was no proof that she had failed to discharge her duties as per the union Constitution.

30. It was further submitted that the Respondent’s Secretary General had no capacity and or powers to order the Claimant to cease being an official of KEWOTA and to deregister herself. That further, the Secretary General of the Union had no capacity or powers to dismiss or remove the Claimant from office and or enforce the unlawful directive of the Circular 29/4/2019.

31. It was further submitted that the Claimant has proved that she was entitled to or had the right to leave without notice because of the Respondent and or the union officials' conduct.

32. The Court was urged to find that the Claimant was constructively dismissed from employment.

33. On the other hand, it was argued on behalf of the Respondent that its conduct did not amount to breach of the employment contract. Citing the case of Milton M Isanya vs Aga Khan Hospital Kisumu and referencing the letter of 14th May 2019, it was submitted that the Respondent’s conduct was not detrimental to the Claimant as to leave her with no option but to resign. It was posited that the Claimant resigned because she was threatened by removal from office under the Respondent’s Constitution.

34. It was further submitted that the Claimant has failed to meet the ingredients necessary for a claim of constructive dismissal from employment to succeed.

Analysis and determination 35. On 30th June 2023, the Court allowed the Respondent’s Application dated 14th June 2023, by consent. Effectively, both parties confirmed that the Claimant had received the sums of Kshs 2,000,000/= on account of her terminal dues and that a sum of Kshs 268,963/= had been paid to the pensions department in the National Treasury on account of her pension.

36. Flowing from the pleadings before Court, the evidence on record and the opposing submissions, the following issues stand out for determination: -i.Whether there is a case of constructive dismissal.ii.What reliefs if any, avail to the Claimant?

Constructive dismissal? 37. The crux of the Claimant’s case is that she was forced to resign from her position in the Respondent Union owing to a toxic work environment. To this end, the Claimant cited the Respondent for constructive dismissal.

38. The Respondent refuted the Claimant’s assertions and asserted that she resigned as she was threatened with removal from office as provided for in its Constitution.

39. The term constructive dismissal is defined by the Black’s Law Dictionary (10th Edition) to mean: -“An employer’s creation of working conditions that leave a particular employee or group of employees little or no choice but to resign, as by fundamentally changing the working conditions or terms of employment; an employer’s course of action that, being detrimental to an employee, leaves the employee almost no option but to quit.”

40. Courts have also made judicial pronouncements on the issue with one of the leading cases being Coca cola East & Central Africa Limited vs Maria Kagai Ligaga [2015] eKLR, where the Court of Appeal cited with approval the English case of Western Executive (ECC) Limited v Sharp [1978] 1 CR 222 in which Lord Denning held that: -“If the employer is guilty of conduct which is a significant breach that goes to the root of the contract of employment or which shows that the employer no longer intends to be bound by the one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice.”

41. The Court of Appeal proceeded to highlight the following as the guiding principles in determining a case 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 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 repudiatory breach; the employee must-within a reasonable time terminate the employment relationship pursuant to the breach.

42. The issues pertinent to this suit can be traced to a Circular dated 29th April 2019 from the Respondent’s Secretary General addressed to all Executive Secretaries and copied to the National Chairman, National Treasurers, all NEC members, all Branch Chairmen and all Branch Treasurers. The Circular reads in part:“Re: Formation Of Association Groups And UnionsIt has come to our attention that some of our officials within the ranks and file of the Union have clandestinely registered associations that are fully fledged and granted the right to a check-off in liaison with other forces outside the Union. A case at hand is the Kenya Women Teachers Association.The National Executive Council (NEC) whereby wishes to state as follows:1. That No Association shall be formed, registered and granted autonomy to exercise certain mandates that are already provided for in the Union as that shall erode the cohesion of the Trade Union movement (KNUT) where such opportunities have already been offered in the Union.

2. All of us are elected and employed to serve the union and we Must choose to be loyal to the Union and serve the union without undermining it through the formation of alternative associations and organizations that threaten to break the Union.

3. In the event of any official/officer forming such, they shall cease being officials/officers of the Union forthwith.”

43. This was followed by a meeting held on 14th May 2019. The minutes of that meeting were exhibited by the Respondent and of relevance, is that under the heading “Concluding Remarks” it is recorded that:“From now henceforth, if they continue associating themselves with that Association, then they cease being officials/officers of the Union forthwith. if they do not cease, then the contents of circular dated 29th April, 2019 takes effect immediately.”

44. Subsequently, the Respondent’s Secretary General issued the Claimant with a letter dated 14th May 2019, which made reference to the deliberations of the aforementioned meeting. The Claimant was addressed as follows:i.From the date of this letter you will completely cease being an official at the Kenya Women Teachers Association (KEWOTA);ii.In the event, that you continue associating yourself with that group then the contents of Circular Ref. No. KNUT/CIRCULAR/122/14/2019 dated April, 29, 2019 shall take effect immediately;iii.You shall commit yourself in writing to the Secretary General that you are not part of the Kenya Women Teachers Association (KEWOTA). This letter must reach the Secretary General by Thursday 18th May, 2019. iv.You Must deregister your name from the Registrar of Societies and submit the change of names to the office of the Secretary General.

45. As per the Claimant’s testimony, she proceeded on her annual leave in mid-May and resumed work on 25th June 2019 when she resigned from her position in the Union.

46. According to the letter of resignation, the Claimant attributed her frustrations to her association with KEWOTA. Highlighting the reasons behind her resignation, the Claimant stated that upon resuming work from leave, she found the locks to her office door changed a second time. That the first time was just before she commenced her leave. That as a result, she could not access or perform her duties as an elected official or employee of the Respondent.

47. The Claimant further stated that on the same day, she came across a circular on social media from the Respondent’s Secretary General to all Branch Executive Secretaries indicating that the gender desk she was handling shall be henceforth handled by Madam Rosalia Mkanyala, the 2nd Vice National Chairman. She avers that her duties were taken away without notice and without reason.

48. It is common ground that at the time of her resignation, the Claimant was an elected union official of the Respondent and was serving as the 2nd National Women Representative. It is also common ground that she was serving as the Treasurer of an association by the name Kenya Women Teachers Association (KEWOTA). According to the Claimant, her association with KEWOTA is her constitutional right as per Articles 36 and 41 of the Constitution which she contends, allows her to associate and to belong to a trade union of her choice.

49. On the Respondent’s part, the Claimant’s involvement with KEWOTA was in direct conflict with her assigned roles.

50. Being the 2nd National Woman Representative, the Claimant’s roles as per Article VI clause 11 of the Union’s Constitution were to:“…represent the union in forums that articulate the rights of women, handle issues that touch on the position of women at the workplace and perform such duties as will be assigned to her by the Secretary General.”

51. The Claimant exhibited a copy of the Constitution of KEWOTA which provides the mission of the Association as being to facilitate growth and strengthen women teachers through organisation building.

52. During cross examination, the Claimant admitted that her role at the Respondent Union was in relation to women's issues and that she had performed this role very well.

53. Considering the role of the Claimant at the Respondent Union and taking into account the agenda of KEWOTA, it is apparent that the same are overlapping and it can very well be said that they are more or less the same.

54. The Claimant further admitted that KEWOTA was open to all registered teachers. Therefore, it is more than probable that members of the Respondent Union were eligible to join KEWOTA thus presenting conflicting interests. This is further noting that membership to KEWOTA was through subscription hence it would have had a financial implication on members who may subscribe to both the Respondent Union and the KEWOTA. There was there bound to be a conflict between the Respondent Union and KEWOTA.

55. The overlap and conflicting roles aside, it is imperative to revisit the capacity of the Claimant in the Respondent Union vis a vis the manner of her removal from office.

56. Being an elected official, the Claimant could only vacate office in line with Article XVIII Clause E of the Respondent’s Constitution which provides as follows:“Any union official shall cease to hold office upon attaining the age of sixty (60) years, upon resigning by notice in writing to the National Executive Council (NEC) or Branch Executive Committee (BEC), dies or is removed by vote at an annual delegates conference or special conference.”

57. In this case, the Claimant opted to resign. The question thus is whether, in the circumstances, the Claimant could deem herself constructively dismissed. In my considered view the answer is no. Here is why.

58. In light of the Respondent’s Constitution, it is apparent that the Secretary General lacked the capacity to deem the Claimant as having ceased to hold office in the event she failed to dissociate herself with KEWOTA. After all, he was also an elected union official of the Union. Indeed, the Claimant submitted as much. Therefore, in my view, the letter dated 14th May 2019, addressed to the Claimant in that regard was inconsequential.

59. Besides, as per Article IX Clause C, of the Respondent’s Constitution, it was only the National Executive Council (NEC) that had power to suspend or dismiss the Claimant subject to approval of the Annual Delegates Conference. In this case, there was no evidence that NEC had met and resolved to suspend or dismiss the Claimant. There was also no evidence of a resolution of the Annual Delegates Conference removing the Claimant or approving her removal from office.

60. Consequently, the Claimant’s exit as an official of the Union could only be determined by a vote of the Annual Delegates Conference. However, the Claimant opted to resign and cite constructive dismissal.

61. In light of the foregoing circumstances, it is my considered view that the Claimant was not an ordinary employee of the Union with the capacity to be constructively dismissed. Her removal was special and went beyond the Secretary General of the Union and rested with a higher organ being the Annual Delegates Conference, subject to a vote. She knew as much.

62. In this case, her resignation fell outside the realm of what would be construed as amounting to constructive dismissal. This is further taking into account that her position in the Union was elective.

63. Indeed, if the Claimant had an issue with the manner in which she was being asked to vacate office by the Respondent’s Secretary General on account of her association with KEWOTA, nothing stopped her from invoking the dispute resolution mechanism within the Union.

64. The total sum of my consideration is that given the nature of the Claimant’s capacity in the Respondent Union and applying the principles set out in the case of Coca-Cola East & Central Africa Limited vs Maria Kagai Ligaga (supra), she was not entitled to treat herself as having been constructively dismissed on account of the actions and or omissions of the Respondent’s officials.

Reliefs? 65. As the Court has found that the Claimant was not constructively dismissed, the claim for notice pay, salary balance for 17 months and compensation cannot be sustained.

66. Further, the salary for three months from July to October 2019, is similarly declined as it is evident that the Claimant resigned on 25th June 2019 and there is no evidence that she continued rendering service to the Respondent Union beyond that date. In as much as the Claimant states that the Respondent did not accept her resignation until October 2019, there is no evidence that she was at work awaiting acceptance of her resignation.

67. The claim for a Toyota Prado is similarly declined as there is no evidence that the same was contractually agreed upon as part of the Claimant’s terms of service with the Respondent. Indeed, there is no basis for an award of the same either contractually or through the Constitution of the Respondent.

68. With regards to unremitted pension, the Respondent indicated to the Court that it had remitted the sum of Kshs 268,963. 40. Be that as it may, the Respondent did not draw a comparison with the sum of Kshs 339,080. 40 appearing in the letter dated 1st August 2019 from the Teachers Service Commission. That being the case, the Claimant is therefore entitled to the balance being Kshs 70,116. 60.

69. On the question of lumpsum pension, both parties applied different formulae to calculate the Claimant’s lumpsum pension. Whereas the Claimant applied the formulae TME x TYS, the Respondent applied the formulae; TME x TMS 10

70. Notably, the Claimant’s formula is drawn from the report of the Ad hoc Committee of the Terms and Conditions of Service in the Terminal Benefits of the KNUT Staff.

71. In the body of the said minutes, it is indicated as follows:“We noted a lot of anomalies in the KNUT Staff Terminal Benefits Scheme which we resolved to amend and propose for discussion and adoption by the Terms and Conditions of Service Committee.”

72. The Claimant did not present evidence to confirm that the Terms and Conditions of Service Committee, adopted the recommendations made by the Adhoc Committee. To this end, the basis for the formula by the Claimant is not supported by evidence.

73. Be that as it may, the Respondent admitted paying the Claimant the sum of Kshs 2,000,000/= against a total sum of Kshs 2,847,872/=. Essentially, there is a balance of Kshs 847,872/= which I find the Claimant is entitled to.

74. As to the claim for leave, the Claimant did not specify the period for which she is claiming 31 leave days. This is further considering that by her own admission, she had proceeded on leave from mid-May upto 25th June, 2019. Therefore, she ought to have specified the period for which she claiming leave pay.

Orders 75. In the final analysis, I allow the claim against the Respondent only to the extent that the Claimant is entitled to be paid the balance of the lump sum pension and unremitted pension totalling the sum of Kshs 917,988. 00.

76. The rest of the claims are dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023. ………………………………STELLA RUTTOJUDGE