SHOCKING NEWS: Siaya County Government Dismissing Health Workers Starting From Today

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For purposes of objectivity the dismissal letter has been reproduced below in its entirety:

6^th December 2023

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And

Chief Officer – Health and Sanitation,

County Government of Siaya

And

County Secretary,

County Government of Siaya

Service Via email: info@siaya.go.ke;

Attn: Dr. Martin Odhiambo K’onyango, Dr Samuel Omondi Owino and Mr. Joseph Ogutu

RE: CONSTRUCTIVE DISMISSAL OF HEALTHCARE WORKERS IN SIAYA

REFERAL HOSPITAL

The above matter refers.

I am writing to inform you of constructive discharge situation necessitated by the new Siaya Medical Superintendent for Siaya Referal Hospital – Dr Oduor by unilaterally changing the contract terms of the contracted technical staff (Nurses, Clinical Officers, Laboratory Officers and Pharmaceutical Technologists) to Locum contracts. This message was passed through the Clinical Officer in charge – Dr Howard and the Nursing Manager Dr. Joash Okinyi in their WhatApp group message.

In addition the workers have received threats and intimidation for speaking out against these illegalities. I have therefore concealed their identities for fear of reprisal.

The health care workers affected (10 clinical officers, 25 nurses, 3 pharmaceitical technologists, 9 laboratory officers and 4 Orthopedic trauma officers) are extremely disappointed in the lack of responsibility shown by the CECM, Chief Officer and County Secretary lack of action to remedy these clear breaches. In addition to failure by the County Executive to pay three month’s salary arrears without notice which completely paralyzed the working environment. This has made working at Siaya Referral hospital impossible and County executive has shown a clear desire not to remedy these clear breaches of the terms of employment.

It is now quite clear that the County executive has shown a clear desire without any peradventure that they do not intend to be bound by the fundamental terms of the contract of employment and instead, make the working environment intolerable and there is no clear indication that the issues would ever be resolved.

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.

The Employment Act, 2007 (the “Act”) which is the primary legislation governing labour relationships in the country, does not make explicit reference to the term constructive dismissal. However, Section 45 of the Act provides that an employee may terminate their employment where the employer has breached a fundamental term of the employment contract. Therein lies the substratum of constructive dismissal and this Article seeks to delve deeper into the concept of constructive dismissal and the legal framework around it.

Constructive Dismissal

Constructive dismissal is an exception to the general rule that an employee who voluntarily resigns from employment forfeits the right to sue an employer for wrongful termination of employment.

The fundamental breaches by the employer towards an employee forcing them to resign from work may include non-payment of remuneration, demotion in rank, failure to provide an employee with work, and serious cases of sustained discrimination or mistreatment or if the employer unilaterally varies terms of the contract.

Determining Constructive Dismissal

The court of appeal in Coca Cola East and Central Africa Limited versus Maria Kagai ligaga, (2015) eKLR, set out principles for determining constructive dismissal to be as follows:

What are the fundamental or essential terms of the contract of employment?	v Non-payment of salaries v Change in contract terms to locum v Threats and intimidation for whistleblowers
Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?	Message from Siaya Medical Superintendent
An objective test is to be applied in evaluating the employer’s conduct.
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.
Has the conduct of the employer fundamentally or significantly breached the contract or gone to the root of the contract of employment or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract?
An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.

The employee must not have accepted, waived, acquiesced or conducted himself in a manner preventing him from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach

The burden to prove repudiatory breach or constructive dismissal is on the employee

I understand that you are required to respond formally to my complaint. I shall seek legal redress for those affected if I do not hear back from you in a week’s time.

I look forward to hearing from you in the very near future.

Yours Faithfully

Mike Ochieng (Signed)

Siaya Resident