Background
In this landmark decision, a 3-judge bench of the Court of Appeal held that an employee cannot legitimately evade ongoing disciplinary proceedings by tendering a resignation or retirement notice “with immediate effect”. The case involves an employee of Timsales Limited who attempted exactly that.
The case arose from an employment dispute between an employee of Timsales Limited and the company following the commencement of disciplinary proceedings. The employer had issued the employee with a show cause letter for alleged misconduct. Before the disciplinary process could be concluded, the employee wrote a letter notifying the company of his intention to retire with immediate effect. He then argued that his notice effectively ended the employment relationship and that the company no longer had jurisdiction to proceed with the disciplinary hearing.
Timsales Limited, however, declined to accept the retirement letter and proceeded with the disciplinary process. The employee challenged the employer’s decision before the Employment and Labour Relations Court claiming that his retirement had taken effect and that the disciplinary proceedings were therefore unlawful. The ELRC dismissed the claim, leading to an appeal at the Court of Appeal.
Court of Appeal’s Findings
The Court of Appeal upheld the decision of the ELRC and made several important determinations on the validity and effect of resignations or retirements tendered during ongoing disciplinary processes.
The Court held that once disciplinary proceedings have commenced, an employee’s attempt to retire or resign “with immediate effect” in order to avoid accountability is invalid. Such a notice does not automatically terminate the employment relationship unless the employer expressly waives the notice period.
The court further stated that there is no concept of “immediate effect” resignation under Kenyan employment law, and emphasized that both resignation and retirement are subject to notice periods prescribed in the Employment Act or in the contract of employment. An employee cannot unilaterally determine the date on which their employment ends without the employer’s consent.
It also held that Employers may lawfully continue disciplinary proceedings despite a resignation or retirement notice. Where it is evident that the employee’s notice is meant to frustrate or defeat the disciplinary process, the employer retains the right to proceed with the case to its conclusion. It arrived at this conclusion noting the timing and motive of the resignation/retirement.
Conclusion
The Court of Appeal’s ruling in Chege v Timsales Limited provides much-needed clarity on the intersection between disciplinary processes and employee resignations or retirements. It reinforces the principle that accountability cannot be circumvented by abrupt resignation or retirement letters once disciplinary action has started.
This decision aligns with the objectives of the Employment Act, 2007, which emphasize fairness, accountability, and procedural integrity in employer-employee relations.x
