Ligaga v Cocacola East and Central Africa Limited (Cause 611 (N) of 2009) [2011] KEIC 36 (KLR) (31 May 2011) (Award)

REPUBLIC OF KENYA IN THE INDUSTRIAL COURT OF KENYA AWARD IN CAUSE NO. 611(N) OF 2009 MARIA KAGAI LIGAGA VERSUS COCA COLA EAST AND CENTRAL AFRICA LIMITED DELIVERED BY HON. MR. JUSTICE JAMES RIKA JUDGE MEMBERS J. Lokwee D.K. Siele REPUBLIC OF KENYA IN THE INDUSTRIAL COURT AT NAIROBI CAUSE NUMBER 611[N] OF 2009 BETWEEN MARIA KAGAI LIGAGA………………………………………………… CLAIMANT VERSUS COCA COLA EAST AND CENTRAL AFRICA LIMITED………………………………………………………... RESPONDENT ISSUE IN DISPUTE: UNFAIR TERMINATION OF CONTRACT OF EMPLOYMENT AWARD Maria Kagai Ligaga filed her statement of claim against her former employer the regional multinational enterprise, Coca Cola East Africa Limited, on 15th October 2009. She was represented by Kadima and Company Advocates. The reply was filed on 20th November 2009 through Messrs. Iseme, Kamau and Maema Advocates. Thereafter the claimant presented a further statement of claim and a supplementary claim. The respondent filed a supplementary reply closing the pleadings on 15th February 2010. Hearing commenced on 12th March 2010. Mr. Francis Kadima conducted the claimant’s case, with Mr. Martin Munyu leading the defence. Maria testified on 12th March 2010, and 18th January 2011 when Mr. Kadima closed her case. We heard the reply on 4th March 2011. David Ssegawa, the Human Resources Director of Coca Cola East, Central and West Africa Limited gave evidence on behalf of the respondent. The proceedings closed on 4th March 2011. 1.1The claimant told the Court she was employed by the respondent in 2005. She was given a written contract of employment, in a letter from the respondent dated 30th July 2005. Her designation was Human Resources Manager - Horn of Africa, Islands and Mid Africa. Her date of commencement was 1st September 2005. Her basic, beginning salary was Ksh. 308,000 (Three Hundred and Eight Thousand Only). She was entitled to other benefits that included car allowance, health club allowance, security allowance, medical scheme and education assistance for her children. 1.2 Maria worked well and was promoted in 2007. In 2005, she was managing human resources in 11 French Speaking countries. She is fluent in French and was comfortable overseeing Francophone countries. The promotion in 2007 saw her Human Resources Management role expanded to cover 23 countries. Her basic salary was increased to about Ksh. 400,000 (Four Hundred Thousand Only). Her good work was appreciated in 2007, with the grant of bonuses, and a retention award. Retention Award was rarely given. Only the very best talent in the respondent company, those whom the company wished to retain, were recognized in this manner. Things were working great for Maria. 1.3The fall began in the following year 2008. In April of that year, she had served as the acting Human Resources Director. She was one of the best performing female employees. In July 2008, a substantive Human Resources Director David Ssegawa was appointed. He immediately asked Maria if she desired to take the offer of a development assignment from the respondent. This development assignment was styled ‘LOCAL PLUS TALENT MOBILITY [LPTM]. It was designed in 2008, and aimed at nurturing talent, especially among the female employees. It related to women in development and was geared towards encouraging the professional mobility of women employees. Maria took up the challenge. She intended to take this assignment to develop her talent and shift from Human Resources Management to Operations Management. 1.4On 16th September 2008 the assignment contract was forwarded to her by Ssegawa. She signed on 26th September 2008. The assignment required her to move to Kampala, Uganda in an Operations Marketing and Development Assignment. Maria was to be hosted by Coca Cola Subsidiary, Century Bottling Company Limited, effective from 1st December 2008, and would be reporting to Century’s Sales and Marketing Manager Hassan Saleh. The claimant would serve for 12 months in Uganda. Her salary was Uganda Shillings 12.4 (Twelve Million and Four Hundred Thousand) each month, the equivalent of about Ksh 480,000 (Four Hundred and Eighty Thousand Only). She travelled to Uganda accompanied by her husband and daughter. The daughter transferred school from Rosslyn Academy in Gigiri, Nairobi Kenya, to International School Kampala, Uganda. On 23rd January 2009, she had served for about two months, when Ssegawa informed her, she could not proceed with the assignment. Century could not accommodate her because the position she was assigned to did not exist. 1.5The claimant was offered the position of Operations Manager for Mozambique on 5th February 2009. She testified she agreed to move to Mozambique. Maria, however, made certain requests to her employer. Mozambique is a Portuguese Speaking country. She said this was a unique market she was being sent to. Her first request was on salary administration. She wished to be paid in US Dollars because she felt the Mozambican Currency was unstable. In the alternative, she wished the respondent to consider splitting her pay into Kenyan and Mozambican Currencies for protection. Secondly, she sought confirmation that environment and cost of living allowances were 10 and 24.1 percent respectively of her base pay. Thirdly, that she would continue to participate in the Kenyan Pension Scheme. Fourthly, she sought an explanation from her employer on the social security system of Mozambique particular on the applicable statutory deductions, and payments at the end of the sojourn. She enquired about the medical scheme and job grading. The claimant stated she wished to return her daughter to Rosslyn Academy in Kenya and put her in boarding as the child would not adjust easily to the cultural change in Mozambique. The mother felt she could not leave her daughter in the unfamiliarity of Uganda, or venture with her unto the unknown. Lastly, she wanted the respondent to consider giving her home leave tickets once every two months, to enable her visit her daughter in Nairobi, or enable the daughter to visit her mother in Mozambique. These requests were not specifically responded to. The move to Mozambique came to a cropper. 1.6Instead, she was redirected to Nairobi, in an Operations Marketing Development Assignment. The letter redirecting her came from Ssegawa and was dated 16th March 2009. She was told she would transition back to Nairobi effective 1st April 2009 to continue with her assignment in the East African Franchise reporting to the General Manager. Her basic salary remained at Ksh 480,000 (Four Hundred and Eighty Thousand Only). Her new assignment had two components: first, she was to be involved in Franchise Projects, starting off with the Operations Alignment Project East Africa, with subsequent projects determined by business needs discussed between Maria and her line manager; secondly the development assignment comprised Operations Marketing Management overseeing Nyeri territory. She was reminded by Ssegawa that the intention of offering development assignments to individuals is to allow them the opportunity to learn and develop in their current or future roles. The claimant accepted this offer on 31st March 2009. The assignment was effective from 1st April 2009. She asked the respondent to introduce her to the Nyeri Bottling Plant and requested for a suitable car to enable her carry out the assignment. According to her evidence she was not facilitated to move to Nyeri. Her role at Nyeri was not properly defined. She pleaded with the respondent to give direction on the assignment, but nothing came resulting in the feeling by the claimant that she was not adding value to the company, and was not progressing in her career. At the end of April 2009, she was asked to move to Kisumu. This was in a development capacity. She was to fill in the position of Operations Marketing Manager, Kisii and Kisumu, reporting to Country Manager-Kenya effective 1st May 2009. She accepted the assignment. The incumbent Operations Marketing Manager Kisii-Kisumu Rickham Muga commenced the handing over to Maria immediately. The claimant relocated to Kisumu. The posting lasted one month. The Country Manager Peter Njonjo called Maria and told her she could not continue serving in Kisii and Kisumu. No reason was given by Njonjo. He told the claimant further communication would come from Ssegawa. She was emotionally devastated. The reason why she could not continue in this posting was later given. Rickham Muga had hoped to move to Nairobi, but that move had not actualized. He had opted to remain in Kisumu, which meant there was no vacancy for Maria. 1.7On 5th June 2009, she wrote an emotional letter to Ssegawa, on her way back to Nairobi from Kisumu. She stated she had been ecstatic to have been identified by the respondent as a female with potential to ascend to senior roles in General Management. She had enthusiastically embraced the development assignment from 1st December 2008. It was an assignment that was expected to last twelve months. Maria felt that her journey so far was a harrowing experience, wrought by inconsistencies in planning, direction and the general stewarding by the managers of the development assignment. Her conclusion was that the development assignment had failed. She felt inequitably treated. She told Ssegawa she was emotionally torn apart, and her family shared in her grief. She asked to be returned to her initial role as the Franchise Human Resources Manager, the position she served prior to her journey to Uganda that started on 1st December 2008. She expressed her wish that this would be made possible on 8th June 2009 by a renewal of her contract in the former role. Ssegawa replied on 6th May 2009. He advised that the claimant’s General Manager would discuss the issue with Maria in detail and advise on the next course of action. The claimant testified she then embarked on fruitless visits to Ssegawa and the General Manager Kelvin Balogun. She met the two gentlemen on 15th June 2009, but their discussions did not focus on her return to Human Resources. The following day, 16th June 2009 (not 2008 as stated in the letter), Maria tendered her Notice of Termination of Employment. She said the events of the past six months had forced her to make the decision. The notice once again expressed the claimant’s feeling that she had been treated inequitably and unjustly. She would have preferred to continue working. Maria asked the company to process her separation package which she detailed to include, inter alia compensation for unfair termination. The notice of termination was accepted two weeks later, in a letter from Ssegawa to the claimant dated 29th June 2009. 1.8This brought to an end the claimant’s employment relationship with the respondent. In her evidence the claimant emphasized she left the respondent’s employment involuntarily. She felt mistreated and harassed. There was in place a Workplace Rights Policy. The Coca Cola Company committed to conduct its business responsibly and ethically with respect to International Human Rights Principles aimed at promoting and protecting human rights. This Workplace Rights Policy espoused the United Nations Declaration on Human Rights, The International Labour Organization (ILO) Conventions on Fundamental Principles and Rights at Work and the Principles laid down in The United Nations Global Compact. The bottom-line in this Policy was that the company treats its employees with dignity, fairness and respect. The claimant argued these Instruments had been violated by the respondent in the events leading to the termination of her employment. She had always followed the direction of her employer and had not at any one time been the subject of disciplinary proceedings. She had never made any demands on the employer in undertaking the various assignments. The claimant asked for general damages for breach of contract, compensation for loss of earnings for the remainder of her twenty eight years of service, maximum compensation at twelve months’ salary, costs, interest and any other suitable relief. 1.9Cross-examined by Mr. Munyu, the claimant conceded she had a contract at the time of termination. She held the view that Coca Cola terminated her contract. She did not have any letter from the employer on termination. She said she joined the Mumias Sugar Limited upon leaving the respondent. She gave her date of the new employment as 15th July 2009. She was without work for about a month. Mumias Sugar was paying her a monthly salary, but according to her she had incurred loss of earnings. All the development assignments she was involved in were discussed with her before she accepted. There was no pressure from anyone in accepting the assignments. She went to Kampala voluntarily. She was not aware of any headcount at Century. The offer in Mozambique was within her line of Operations Marketing Management. She did not refuse to go to Mozambique. She had made certain requests and sought certain clarifications from the respondent, but there was no response. Maria denied that she refused to report to Nyeri because she was not given the car she desired. Her salary continued to be paid during these movements. In Kisumu, the company had rented for her a flat, but she was not able to tell if it was rented for twelve months. Muga was to take another assignment and leave Kisumu in the hands of the claimant. She left Kisumu because she was asked to. Her letter of 5th June 2009 did not show that she voluntarily left employment. She was not impatient. Between the date of this letter and that on her notice of termination were ten days. Maria did not agree with Mr. Munyu that she was impatient. She did not agree that at the date she wrote her termination notice she knew she was headed for Mumias. There was no termination of contract of employment that took place between 5th and 16th June 2009. All contractual benefits were paid to her. The claimant rejected Counsel’s suggestion that because she initiated the termination, she disentitled herself the compensation she seeks from the Court. 2.0The respondent’s position was that the claimant was its employee as stated in her evidence above. David Ssegawa told the Court his duties include stewarding people management and directing the company on how to get the best out its employees. He had worked with the claimant since 2005 when she joined the Coca Cola Group. The witness was a Human Resources Manager, as was the claimant. There were four different Human Resources Managers at the time. Eventually Ssegawa ascended to the position of Human Resources Director. Maria expressed her wish to take up a developmental assignment, to enable her achieve a change in her career direction. She wanted to move from Human Resources Management to Operations Marketing Management. In the development assignment, she would learn on the job, without being held accountable for deliverables expected in a substantive position. 2.1The claimant initiated her move to Uganda on 1 December 2008. She was posted to Century Bottling Company. It was not in the substantive Operations Management role. There were no titles. Her move to Uganda was discussed with the host company. The claimant was party to these discussions. The leadership at the Ugandan company said it could not accommodate Maria as the holding position did not exist. The respondent found her an alternative in Mozambique. She accepted the offer conditionally. Some of her conditions were unreasonable; she wanted a return air ticket every two months; a car that was not available in Mozambique; and, a boarding school for her child in Nairobi. The respondent found some of her demands unreasonable and got the impression she was not ready to travel to Mozambique. 2.2The respondent found an opportunity designed against a project and a territory. She would oversee Nyeri territory. She accepted the offer and commenced the assignment, but still demanded for a car. She was not satisfied with the Toyota Double Cabin Pick-Up offered to her which had been used by her peers. The witness got her a Toyota Rav 4. Maria moved to Nyeri but was still grumbling, saying she had not been given sufficient authority. Ssegawa’s understanding was that handover would be gradual. The development assignment involved a strategy of placing women in Operations Management. While in Nyeri, the claimant received an offer to move to Kisii-Kisumu as Operations Marketing Manager. She was to take over from the person in that role in Kisumu. The person in Kisumu was discussing a similar move to another destination with the respondent. The company rented a flat for Maria in Kisumu. She moved to Kisumu and started working on handover. The person in Kisumu, in the words of the witness, “reached a deadlock with the company and would not move.” The claimant was then invited by the Country Manager Peter Njonjo to discuss the possibility of a similar role in Nairobi. The position was exploratory. It was at this time that Ssegawa received the email of 5th June 2009 from Maria saying she was on her way from Kisumu and was quite unhappy. He advised her to meet her boss Kelvin Balogun and discuss the issue. Ssegawa, Balogun and Maria met in Nairobi. The two men told her they intended to help her succeed. They discussed her grievances and she insisted she wanted to go back to her Human Resources Management role. Ssegawa explained to her that was not possible because prior to her move, she had participated in the recruitment of a replacement. There was in place a Human Resources Manager. Thereafter the claimant gave her notice of termination. The meeting was held on 15th June 2009. She gave notice on 16th June 2009. The Human Resources Director testified that the claimant had a contract of employment all along, irrespective of her location. The company did not rescind her contract of employment. She left willfully. The respondent pleaded with her to give it more time to settle her grievance; she walked away. She was not pushed out. Her notice of termination was received and accepted. The company then paid her terminal dues to her under the contract of employment. The claim to be paid compensation was not valid. She went to work for Mumias Sugar and had no reason to seek compensation for twenty eight years left in her employment with the respondent. She became Human Resources Manager at Mumias. The witness asked the Court to have the claim dismissed. 2.3Answering questions from Mr. Kadima, Ssegawa told the Court it was not true he thought Maria would take his current job. He took his current job in June 2008. He had not moved from Nairobi, but the claimant moved several times in less than a year. She was with her family in Uganda. She could not be blamed for the constant movements. It was the company’s responsibility to ensure the opportunity was there. The company partly executed its responsibility. There was nothing written to show Maria was involved in discussions leading to the various assignments. Nothing in the reply showed Century had confirmed the existence of the opportunity in Uganda. The communication from the claimant to the respondent on the Mozambique offer was in the form of a request. The witness stated that his team responded but was unable to produce a written reply in Court. He admitted he was the officer in whom final responsibility on the issue rested. Ssegawa did not consider her request on the administration of her salary unreasonable. The claimant had expressed concern on the effect the move to Mozambique would have on her daughter. This was an unfamiliar market. Some of her requests were unreasonable. Company policy provided for one annual return air ticket, not one every two months. The witness did not have any material to show that Maria had refused to move to Mozambique. She accepted to go to Nyeri, but complained about facilitation. Nothing was in the records of the respondent to show she had declined to work in Nyeri. She reported to Kisumu, and left on her own volition. The statement of reply stated the offer for Kisumu was conditional. The letter of offer for the Kisumu assignment did not however, contain any conditions. There still was a contract of employment in place as of 5th June 2009. It was incorrect to say the respondent had accepted the demands of the incumbent manager at Kisumu to hang on, other than move to Nairobi, while no such latitude had ever been shown to the claimant. At no time did Maria ever say no to any of the offers from the respondent. In her notice, she expressed her wish to continue in service. She claimed she was treated unfairly and that she was forced into resigning. Ssegawa testified the company did not just accept her notice of termination; It discussed her grievances with her before accepting the notice. The Coca Cola Company has a Workplace Rights Policy exhibited in Court by the claimant. Given the respondent’s intentions and circumstances, it considered itself to have treated her fairly, in accordance with this Policy. Ssegawa had never experienced the withdrawal of four job offers within a period of six months. He did not think she was hounded out of office. There was no evidence from the respondent to show she initiated the move into the development assignment. The claimant had a good record at the respondent. She had not faced any disciplinary action, had been commended by the Coca Cola President and given bonuses. No material was availed by the respondent to show why the offers were withdrawn. Her human rights were respected. The company did what it could to help her. At no time was she offered a fresh assignment and declined. The respondent was ready to engage her in further discussion but she gave it no chance. 2 Mr. Kadima submitted in the end that there was no dispute the claimant had been moved by the respondent four times to different locations in six months. This was in violation of the Workplace Rights Policy and the International Human Rights standards incorporated in the Policy. Maria had not been treated with dignity, fairness and respect. At no time was she trans-located and resisted the instructions of the respondent. It was the responsibility of the respondent to ensure the development assignments were workable, and that there were openings, for the claimant to work in. She resigned involuntarily owing to frustration, harassment and violation of her human rights, by the respondent. Judicial Authorities relied upon by the respondent in support of its position were inapplicable, relating to voluntary resignations and were from the period before the enactment of the Employment Act 2007. Mr. Munyu held that the claimant was offered development assignments after prior discussions with the respondent, and by agreement of the two parties. She made unrealistic demands when offered certain assignments. The respondent had fully facilitated her in undertaking the various assignments. She was treated fairly, in accordance with the Workplace Rights Policy. There was no evidence from her of unfair treatment. She left employment voluntarily. Mr. Munyu asked the Court to find persuasion in the High Court Case Number 3025 of 1994 between Alfred Nephat Mwaniki vs. Barclays Bank of Kenya Limited, where the idea of a forced resignation was discussed, and find that Maria exited voluntarily. She wrote her notice in her own words, at her time and pace. She was paid her terminal dues without raising any reservations. She was not entitled to twenty-eight years salary. This would be tantamount to giving orders of re-instatement. The respondent relied on the Kenya Court of Appeal Civil Appeal Number 120 of 1997 between Kenya Ports and Authorities vs. Edward Otieno on this submission. The respondent did not breach any terms of the contract of employment. She secured another position with Mumias Sugar Company. Her claim was unmerited. The respondent asked the Court to dismiss the whole claim with costs. We have carefully evaluated the parties’ pleadings, the oral and documented evidence, and the submissions of Mr. Kadima and Mr. Munyu. We have arrived at the following Findings and Award -: 3.0Maria Kagai Ligaga, by the common evidence of the parties, was employed by Coca Cola East and Central Africa Limited. This company is part of the Coca Cola Multi-National Enterprise (MNE). Her letter of appointment was dated 30th July 2005. She began working on 1st September 2005. Her job title was Human Resources Manager, Horn of Africa and Mid- Africa. There is no doubt she was an industrious employee. She was commended by the Coca Cola President, given a retention award that was reserved for the best performers and honoured by payment of cash bonuses. She was not given to disciplinary lapses. In April of 2008, she became the acting Human Resources Director. In June 2008, her Human Resources Management colleague David Ssegawa was appointed the substantive Human Resources Director. Maria was offered a development assignment, to work in Kampala Uganda with Coca Cola subsidiary Century Bottling Company, as an Operations Marketing Manager. She moved to Uganda with her husband and daughter in December 2008. The assignment did not work out, because there was no holding position for her. She was redirected to Mozambique in a letter dated 5th February 2009, where she was to pursue Operations Management. This again did not work out and she was then offered the assignment in Nyeri. This was to last one month, April 2009. She was asked to proceed to Kisumu and was to be ushered in by the incumbent Operations Manager for Kisii- Kisumu. She moved to Kisumu City where a flat had been rented for her by the respondent. This assignment again did not come to maturation. At the end of May 2009, she was told to move away from Kisumu. On 5th May 2009, she wrote to Ssegawa expressing her emotional distress over the past six months, brought about by the still-born job assignments. There is evidence she got together with Ssegawa and Balogun in Nairobi between 5th and 16th June 2008. She asked to be taken back to Franchise Human Resources Management role. Ssegawa testified she was informed this was not possible because a replacement had been recruited at the time Maria moved to Uganda. There was no vacancy. On 16th June 2009, the claimant gave her notice of termination of employment. The notice was accepted by the respondent two weeks later. She was paid her terminal due under the contract and left to serve in Human Resources Management at Sugar Manufacturer, Mumias Sugar Company. She later filed this claim, alleging she did not leave employment voluntarily, but was led into it by the intolerable behaviour of the respondent. The respondent on the other hand held that she resigned voluntarily and could not claim any compensation for unfair termination. 3.1There are several issues that could be framed for the purpose of settling this dispute. The core issue is whether Maria terminated her contract of employment of her own free will or whether she was led into doing so? Both parties did not put their finger on the basic principle at play in this dispute. They skirted around the implicated legal concept without giving it a name. The matter revolves around the concept known in employment law as “constructive dismissal.” It is defined in most employment statutes in other jurisdictions but unfortunately, has not been defined in our employment and labour statutes. It is adequately defined in common law. Some of the statutes that have defined the concept include the English Employment Rights Act of 1996 and the South African Labour Relations Act Number 66 of 1995. Under a majority of statutory laws, constructive dismissal occurs where, “an employee terminates the contract under which he is employed, (with or without notice) in circumstances in which he is entitled to terminate it without notice, by reason of the employer’s conduct.” These Acts of foreign parliaments do not of course bind this Court, but an overall understanding of the concept is gained from a comparative look, particularly in view of the omission in our own statutory law. Common law, which has been embraced in our law through section 12 of the Labour Institutions Act Number 12 of 2007, treats constructive dismissal as a repudiatory breach by the employer of the contract of employment. The employer’s behaviour in either case must be shown to be so heinous, so intolerable, that it made it considerably difficult for the employee to continue working. The employee initiates the termination, believing herself, to have been fired. The employee needs to show that the employer, without reasonable or proper cause conducted himself in a manner likely to destroy or seriously damage the employment relationship. Resignation is regarded as constructive dismissal if the employer’s conduct is in significant breach of the contract of employment and that the conduct shows the employer is no longer interested in being bound by the terms of the contract. There is no practical difference in terms of effect, between the statutory and the common law concept on constructive dismissal; it is unlikely that an employer is in fundamental breach of the contract of employment, but all the same is found to have acted fairly. It is very unlikely that a common law breach occurs without amounting to a statutory wrong. The employee’s resignation is therefore treated as an actual dismissal by the employer, and the employee may claim compensation for unfair termination. This concept, like many concepts in labour law, is based on the recognition of the inequality of bargaining power in the employment relationship. If it did not exist, the danger would be that employers would simply force their employees to quit, and avoid paying any form of compensation. The onus of proof in this form of employment termination, unlike in other termination, lies with the employee. While under section 43 and 45 of the Employment Act 2007 the duty in showing that termination was fair is on the employer, constructive dismissal demands the employee demonstrates that his resignation was justified. Other collateral issues that must be shown by the employee are: that the employer made a fundamental change in the contract of employment, and that such change was unilateral; that the situation was so intolerable the employee was unable to continue working; that the employee would have continued working had the employer not created the intolerable work environment; and, that the employee resigned because he did not believe the employer would abandon the pattern of creating unacceptable work environment. These are some of the rules governing a claim for constructive dismissal. 3.2The claimant was given a written contract of employment upon joining the respondent MNE in 2005. Thereafter she went on various development assignments. A development assignment does not in itself terminate the foundational contract. We would agree with the explanation by Ssegawa that for all her journeys, the claimant remained on contract by virtue of the contract executed in 2005. It is important to note this, because if the position by the claimant that she had no contract at the date she left was upheld, then there would have been nothing to terminate at the end of June 2009. The respective development assignments were not meant to terminate the initial contract, but were supplemental to that contract. Development assignments exist for a fixed period of time and for a purpose. MNEs provide development assignments to their employees to broaden staff professional experience. They are aimed at leadership development and career development. Among the MNEs they are commonplace, and regarded as important ways of talent development. MNEs strive through the instrumentality of development assignments, to acquire globally integrated operations, globally savvy corporate leaders and globally oriented — knowledge leaders, with boundary- less business acumen and inter-cultural competence. These assignments are a powerful experience in shaping the perspective and capabilities of effective corporate global leaders. They are critical tools in attracting and retaining talent. They are however viewed as double-edged swords from the perspective of both the concerned individual and the company; the company risks losing its much improved employee at the end of the development assignment to competitors; a failed expatriation and repatriation of the employee could occasion high costs to the employer; and, from the perspective of the employee, there could result adjustment problems and career derailment if the exercise is not properly managed. 3.3The parties were governed primarily by the contract of employment concluded in 2005. This contract was supplemented by the Workplace Rights Policy adopted by the respondent. We have in our past Awards argued that Workplace policies are quotidian aspects of human resources management; they do not become legally binding on the employee, unless specifically incorporated in the contract of employment. They are however enforceable against the employers who author them. They may even become statutory obligations such as under Section 6(2) of the Employment Act 2007. In this case it was the common ground of the parties that the Workplace Rights Policy was a binding, legal document, and not merely quotidian aspect of Human Resources Management. It formed an undisputed part of the contract of employment. To resolve the difference that has been brought to our attention, we would therefore have to refer to the Written Letter of Employment of 2005, the Supplemental Development Assignment Contracts and the Workplace Rights Policy. The latter contained a clause that brought the relationship within the purview of International Law. There was specific reference to United Nations Declaration on Human Rights, International Labour Organization Principles and Rights at Work and the United Nations Global Compact. This employment relationship, even without straining in the Articles of the new Constitution of Kenya as Mr. Kadima did in his closing submissions, was anchored on clear Principles of International Law. The dispute cannot be closed without mentioning these principles adopted by the MNE called Coca Cola. 3.4The United Nations Declaration on Human Rights [UNDHR], of 1948, and the International Covenant on Civil and Political Rights [ICCPR] of 1966 with its two Optional Protocols, the International Covenant on Economic, Social and Cultural Rights form what is referred to as the International Bill of Rights. The ILO has led in the overall advocacy of decent work. Its core Conventions revolve around fair play in employment relationships. The Global Compact was launched in the year 2000, bringing together UN Agencies, Labour, Civil Society and Governments to advance Ten Principles in the areas of human rights, labour, environment and anti-corruption. The Global Compact seeks to mainstream these ten principles into business activities. It will not be possible to analyze the principles germinated under the aegis of these International Instruments individually in detail, in so far as they relate to the issues in dispute. Suffice to say underlying these Instruments is the idea that governments are primarily responsible in the protection and promotion of Human Rights, but MNEs and individuals are called upon to similarly respect and promote Human Rights. In their operational contexts, MNEs must uphold Human rights and avoid corporate activities that imperil such rights. Principle Number one of the Global Compact captures the essence of all other International Instruments mentioned in the respondent’s Workplace Rights Policy; business everywhere has the responsibility to respect Human Rights, and not infringe on the rights of others. The work of UN Global Compact is incomplete in this dispute, without mentioning the Partnership between Global Compact and the United Nations Development Fund for Women [UNIFEM]. UNIFEM works towards the advancement of women in the global marketplace. The work of UNIFEM and Global Compact is geared towards the empowerment of women. Women empowerment is viewed as an integral part in ensuring sustainability of business. On 5th March 2009, when Maria was moving from Mozambique assignment to Nyeri, UNIFEM and Global Compact were conversing in New York, United States of America. Out of this social dialogue came the message that achieving gender equality or reducing poverty is not first the business of government, the UN and the International Finance Organizations; it is a core business of the Private Sector and in particular the MNEs. What have come to be termed as the “Women’s Principles” were adopted. These principles form part of the credo of Global Compact. They are principles comprising the terms and conditions of employment of the parties. Without delving into details, this parley determined that MNEs and Government should take concrete steps to attain gender equality, undertake concrete and verifiable actions to recruit and retain women in employment. Importantly this partnership resolved that businesses must incorporate in the woman worker’s terms and conditions of service provisions that engendered a work-life balance. There was a call on MNEs to take verifiable and concrete action to make the woman’s professional and private life balanced. The International Instruments adopted by the respondent in its Workplace Rights Policy recognize the need to promote and protect the rights of female employees. The employers are obliged to live up to these principles as part of their Human Rights, Social, Labour and sustainable development responsibilities. Under the national systems, these principles are restated and there is always an obligation for MNEs to observe the labour regime of host countries. 3.5The development assignment offered to the claimant was designed by the respondent. It was meant to last twelve months. The expectation was that in the end the employee would have been repatriated into Operations Management Role. It was the responsibility of the respondent to manage the claimant’s expatriation and repatriation. For six months, she moved from one location to the other in fruitless search of professional development. She was led into these locations by the respondent. There was an abysmal failure by the respondent in managing its developmental assignment. We do not find any issue that could be blamed on the claimant as to why the assignment failed. She was asked to move to Century bottling. The respondent must have known there was an actual role for the claimant to perform in Uganda. She relocated with her husband and daughter. The child was moved to a new school in Uganda. This family did not settle in Uganda at all. Within a month, the claimant was told there was no holding role in Uganda. Why would the respondent send her to Uganda knowing there was no role for her there? The family was disrupted through no fault of the claimant. The respondent then offered to send the claimant to Mozambique. Any employee would seek the assurances and requests made by Maria on being offered the Mozambique Market. The Uganda experience was still vivid in the claimant’s mind. The new offer related to a Portuguese speaking country, culturally different from East Africa. We do not think her requests were anything outside what would be expected of an employee, asked by her employer to serve in an unfamiliar area. The claimant accepted to move to Mozambique. Her requests were not specifically answered to. The respondent’s witness said they got the impression Maria did not wish to move to Mozambique. There is nothing on record however, to show that she expressed her unwillingness to the respondent to work in Mozambique. We think the concerns she had raised on salary administration, allowances, social security, education and leave were ordinary employment concerns which were open to discussion between employer and employee. They were not meant to signal an unwillingness to move to Mozambique. The offer to Nyeri similarly does not seem to have been backed up with sufficient support of the assignee, from the respondent. We do not think the issue was simply about the car. The assignment offer dated 16th March 2009 referred to Franchise Projects in East Africa and secondly, to Nyeri. One gets the impression that the respondent was still struggling to find a well defined and verifiable role for the claimant in the company. What was meant by the respondent in allocating the claimant Operations Alignment Project in East Africa? The offer to Nyeri and East Africa made on 16th March 2009 was not specific. Ssegawa described it as an opportunity designed against a project and a territory, but from the wording of the offer and the evidence of the parties, Maria was simply getting into that role of “A Minister without Portfolio” or “An Ambassador at large.” Such a role did not fit in with the purpose of development assignment, and it was little wonder that the claimant felt she was not growing professionally. The pattern of mismanaging her mobility continued to Kisumu. As observed with regard to Uganda, it was for the respondent to have appropriate plans in rolling out the Kisii-Kisumu assignment. It was irresponsible to send the claimant into the unknown. Maria obeyed the instruction of the respondent and moved to Kisumu. The officer at Kisumu was involved in a move away from Kisumu that would create the opening for Maria. After the claimant moved to Kisumu however, the Operations Manager Kisumu had a change of mind opting to hold onto the lakeside city, and Maria found herself out in the Coca Cola wilderness once again. We did not understand why the company would allow Muga to go on serving at Kisumu when Maria had already presented herself there, a long term lease for her flat obtained by the respondent and handover process commenced. Employees do not just act without the direction of the employer on movement from one location to another. The failure of the venture into Kisumu only buttressed the conclusion that the respondent had completely mismanaged the development assignment. Maria’s career-pathing was totally mishandled by the respondent. Her career with the Coca Cola MNE was derailed. She set off on a career development path, was moved from one vehicle to the other, persistently given new destinations and ended up in the middle of nowhere. 3.6She wrote on 5th June 2009 to Ssegawa expressing her distress and that of her family. A meeting with Ssegawa and Balogun organized in the next week offered the respondent an opportunity to mitigate what to us were clear violations of the contract of employment. Nothing was shown to have been offered to the claimant in real terms by the two gentlemen. At the time they asked her to move from Kisumu, it would have been reasonable to have a ready alternative offer for her. There was nothing in real terms, and the employer was groping in the darkness about placing its employee in a suitable role. The contract of 2005, even by the admission of Ssegawa, was still in place. That contract had designated the claimant as the Human Resources Manager, Horn Africa, Islands and Mid-Africa. This is the role she asked to go back into; a substantive role in Human Resources Management. The contract in place was on this role. This contract as argued above was not replaced by the various short term development assignments. It was the express admission of the respondent that the initial contract continued to have validity, irrespective of the location Maria was sent to. She ought to have had no problem in going back to her substantive position. The development assignments were in the nature of short term detours. Ssegawa stated she could not go back because there was another person already in that role. We do not think this explanation was satisfactory. On the one hand Ssegawa explained that the claimant remained on contract irrespective of her location and on the other hand, he held that she could not fit in a role created by a contract that was still in place. This stand was in fundamental breach of the contract of 2005. This is the same witness who told the Court that at the time he served with Maria before his becoming the Human Resources Director, there were no less than four Human Resources Managers serving at the respondent. The claimant gave notice to resign on 16th June 2008. This was accepted by the respondent and became effective at the end of June. 3.7 In our view her resignation was involuntary. This was an unmistakable case of constructive dismissal, a concept defined in the preceding paragraphs. We find that Maria demonstrated to the Court that the respondent made fundamental changes to her contract of employment that resulted in career derailment and serious family life disruption; the frequent changes in the development assignment were caused unilaterally by the respondent; the work environment created by the respondent made it impossible for the claimant to grow in or discharge her role; and, the claimant resigned because she did not believe Coca Cola had made any concrete proposals on making the employment relationship workable. She convinced the Court that her resignation was justified. The respondent violated her contract of employment and in particular the various international principles adopted in the Workplace Rights Policy discussed above. The respondent repudiated the contract of employment and treated the claimant unfairly. Coca Cola placed the claimant on development assignment, mismanaged the exercise and finally told the claimant she could not revert to her previous role that was anchored on a valid employment contract. She was constructively dismissed. The Judicial Authorities relied upon by Mr. Munyu related to the period before the enactment of the Employment Act 2007 and the Labour Institutions Act. None related specifically to the issue of constructive dismissal as understood by the Court in this dispute. The case of Alfred Nephat Mwaniki related to an employee who alleged to have been threatened by his employer and given a piece of paper to write his letter of resignation. It was the finding of the High Court that resignation was not obtained through duress or coercion. In this dispute the claimant did not say that she was coerced or threatened into resigning. That she wrote the letter of 5th of June 2009 freely was never in issue. The issue was whether she had reason to resign, whether she was justified in resigning and whether the events leading to that resignation were of the respondent’s making. The actions of the respondent need not have been coercive, threatening or in the nature of duress. The respondent in this dispute appears to us, to have been an employer who created an intolerable work environment, fundamentally breached the contract of employment, through sheer professional incompetence, rather than through any deliberate acts of coercion, threats or duress. It is enough that the employer is shown to have made the contract of employment unworkable or severely damaged the employment relationship. This in our understanding is what constitutes constructive dismissal. Indeed, the concept demands that the employee initiates the termination and does so within a reasonable time after the trigger. 4.0We do not think the claimant would be entitled to twenty eight years’ salary for the remainder of the contract. This would be an Award in anticipation. There was no assurance the claimant would have gone on serving for another twenty eight years. The parties agree the claimant soon after leaving the respondent secured a position with Mumias Sugar Company. If she wished to earn twenty eight years’ salary, she should have asked for the Court to order she is accepted back by the respondent in the Human Resources Management role. She would succeed in receiving two huge salaries from two blue chip companies, while not rendering any service to one of the two companies. The purpose of employment compensation is not to unjustly make rich aggrieved employees, but to redress their injuries in a proportionate way. Courts, even in advanced economies, hardly Award compensation based on the remainder years of service. Compensation must be reasonable and not appear to punish the employer, more so where the concerned employee has managed to mitigate her loss within a short period of time from the date of constructive dismissal, by securing another decent job with another reputable company. Where a claim cuts across the common law and Statutory law, it again will not be in keeping with the purpose of remedies if the Court ordered for compensation under both regimes separately. We did not think therefore that it would be appropriate to Award the claimant general damages for breach of contract and twelve months’ salary in compensation for unfair termination. There is in the end one injury, meriting a single form of remedy. It is never the purpose of compensatory Awards to encourage replication of injuries and multiplication of remedies. The law of unfair termination requires that the Court observes the principle of fair go all round, in redressing employment wrongs. We have also noted that the law on termination of contract under sections 43 to 50 of the Employment Act 2007 envisages termination through the initiative of the employer. The lack of specific inclusion of constructive dismissal as a Statutory concept in the Employment Act 2007 creates a unique problem in adopting the remedies under section 49. Unfair termination is initiated by the employer and remedies under section 49 relate to only that variety of termination. Without specific inclusion of the notion of constructive dismissal in the Employment Act 2007, there is a risk constructively dismissed employees are disabled in accessing the raft of remedies created under section 49. There is need to have specific inclusion in the Act. We are however satisfied that there is adequate protection offered by the Labour Institutions Act Number 12 of 2007. Section 12 as alluded to earlier gives the Court the jurisdiction to remedy common law as well as statutory wrongs. Section 12 (4) creates the power to grant award of damages and section 15 states that if we find the dismissal to have been unfair, we may order for reinstatement, re-engagement, or Award that the employee is paid a maximum of 12 months’ salary. This Act does not limit unfair termination to that instigated by the employer. It is a law that enables the Court to redress constructive dismissal. 4.1The claimant last gross monthly salary was Ksh.712,934 (Seven Hundred and Twelve Thousand Nine Hundred and Thirty Four Only). This was a figure that was not disputed. We have considered that she has moved on to a fairly decent position at Mumias Sugar Company. The respondent nonetheless is shown to have treated her unfairly, mismanaged her development career and derailed her ambition to move into Operations Management. She indeed went back to Human Resources Management at Mumias. The violation by the respondent was grave. This is a business that violated domestic and international labour standards, went against a Workplace Rights Policy it had freely adopted and stunted the potential of a highly talented woman in development. It caused disruption in the lives of the claimant, her husband and her daughter. Such conduct by a Multinational Enterprise was appalling and not in the interest of sustainable development. We Award in Favour of the Claimant in the following terms-: a) the claimant was constructively dismissed from employment by the respondent. b) The constructive dismissal amounted to unfair termination of employment. c) The respondent to pay to the claimant 9 months’ gross salary in compensation calculated at Ksh.6, 416,406 (Six Million, Four Hundred and Sixteen Thousand, Four Hundred and Six Only) d) the entire sum be paid within 30 days of the delivery of this Award. e) Parties to bear their own costs. The members agree, we so Award. Dated and delivered at Nairobi this 31st day of May 2011 JACOB LOKWEE D.K, SIELE MEMBER MEMBER HON. JUSTICE JAMES RIKA JUDGE.