INTRODUCTION
In employment law, resignation is a unilateral act by the employee to terminate the employment relationship. Once communicated, the resignation takes effect without requiring the employer’s acceptance, as consistently upheld by the courts.
EFFECTIVENESS OF RESIGNATION
In Apudo v Azure Hotel Limited Cause 816 of 2018 KEELRC 321 (KLR[1]), the claimant alleged that her resignation was coerced and served as a cover-up for summary dismissal. However, the court ruled that the claimant failed to provide sufficient evidence to support the claim of duress. The court held that resignation is one of the recognized methods for terminating an employment contract and does not require acceptance by the employer.
The court relied on the case of Ayonga v Falcon Signs Ltd Cause 878 of 2017 KEELRC 300 KLR[2], in making its decision, where it was decided that resignation is one of the modes of terminating the employer-employee relationship. Being a unilateral act, the employee who wishes to sever the employer-employee relation can elect to serve the employer with resignation. The resignation may be expressed to take effect either immediately or at a later date as indicated by the employee. Once an employee communicates the decision to resign from employment, the contract of employment is effectively terminated. The validity of the resignation is not dependent on the employer accepting it.
Rejecting the resignation is tantamount to subjecting the employee to servitude which contravenes Article 30 of the Constitution of Kenya 2010.[3]Doing so may expose employers to potential claims by employees.
RESIGNATION PENDING DISCIPLINARY PROCEEDINGS
An employer is bound to accept an employee’s resignation even in instances where such employee is evading disciplinary action. An employee is free to resign from employment at any time when undergoing disciplinary action.
However, it is important to note that the Court has distinguished the consequence of immediate resignation and resignation by notice pending a disciplinary process. If an employee’s resignation is not immediate, that is, he is serving the notice period, the employer retains the jurisdiction to discipline the employee during the pendency of the notice period.
This was well explained by court in the Kennedy Obala Oaga v Kenya Ports Authority 2018 eKLR[4], where the Claimant was employed as a Supplies Officer by the Respondent and he was still undergoing disciplinary proceedings on allegation that he supplied the Respondent with fake academic certificates to gain employment, when he tendered his letter of resignation with immediate effect before conclusion of disciplinary proceedings.
However, the Respondent summarily dismissed him and rejected his resignation after finding the Claimant guilty of presenting forged academic certificates to the Respondent, to gain employment.
The primary issue in dispute is whether Claimant’s resignation was valid, lawful and binding on the Parties. The Second question, is whether summary dismissal which followed resignation, had any legal effect.
In the Kennedy Obala Oaga case, it was stated that the Respondent ceased to have the jurisdiction to discipline the Claimant on 27th November 2015 after the letter of resignation with immediate effect was tendered. Although the disciplinary hearing had concluded, there was no verdict at the point the employment contract was terminated. The Respondent could not deliver a lawful verdict arising out of the disciplinary process, after termination of employment. The Claimant was no longer an Employee of the Respondent, after 27th November 2015.
In Mtati v. KPMG (Pty) Ltd (2017)[5], the South African Labor Court held that an employee’s immediate resignation deprives the employer of jurisdiction to continue disciplinary proceedings. The court emphasized that authority to discipline is based on the existence of an employment contract, which ends upon immediate resignation.
The court, however, distinguished the consequences of immediate resignation and resignation by notice on a pending disciplinary process. If the employee has given notice and is serving the notice period, the employer retains jurisdiction to discipline the employee until the notice period ends.
In our case the Claimant, Kennedy Oballa Oaga resigned with immediate effect. He was not serving notice period at any time after 27th November 2015. He was also not serving notice period on 8th January 2016, when the Respondent informed him that his resignation had been rejected and he was also not serving notice period when the Respondent dismissed him on 12th January 2016.
Given the above, he was not an Employee of the Respondent after 27th November 2015. The Respondent did not have authority to pronounce any decision on a former Employee, after 27th November 2015.
PAYMENT IN LIEU OF NOTICE
While resignation is effective once communicated, Section 36 of the Employment Act, 2007 addresses situations where notice is not served. Either party to a contract may terminate it without notice, provided they compensate the other party for the unserved notice period.
For example, in Kenneth Onialo v Majlis Resort Lamu, the claimant, who failed to give the required 28-day notice, was ordered to pay Ksh. 74,666 as compensation. Similarly, in Gold Crown Beverages (Kenya) Limited v Maina Ngugi, the respondent’s immediate resignation without serving the three-month notice period led the court to order a payment of Ksh. 1,500,000. These cases highlight that while resignation is valid and effective, the employee must compensate the employer in lieu of notice if they fail to serve the required period.
CONCLUSION
In conclusion, resignation is a unilateral act that takes immediate effect once communicated, regardless of the employer’s acceptance. Employers lose the authority to discipline an employee after resignation, except during a notice period if served. If you have any queries relating to the above, please do not hesitate to contact James Wairoto or Veronicah Mutua. Please note that this publication is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.
[1] Apudo v Azure Hotel Limited (Cause 816 of 2018) [2024] KEELRC 321 (KLR)
[2] Ayonga v Falcon Signs Ltd (Cause 878 of 2017) [2023] KEELRC 300 (KLR)
[3] Article 30 of the Constitution of Kenya 2010 which states that a person shall not be held in slavery or servitude
[4] Kennedy Obala Oaga v Kenya Ports Authority [2018] eKLR
[5] Mtati v. KPMG (Pty) Ltd (2017) BLL 315 (LC
