An employee cannot resign to escape disciplinary action, appellate court rules

The Court of Appeal has ruled that an employee cannot avoid disciplinary action by resigning or purporting to retire after being accused of misconduct.

A three-judge bench comprising Mohamed Warsame, John Mativo, and Gachoka Mwaniki upheld a decision of the Employment and Labour Relations Court (ELRC) in Nakuru, which found that former Timsales Limited employee Peter Chege could not use retirement to evade disciplinary proceedings.

“We affirm the trial court’s finding that the appellant’s purported retirement notice cannot be used to escape lawful disciplinary proceedings,” the judges ruled.

They added that Chege’s retirement without notice was invalid, as the disciplinary process had already commenced.

Chege had appealed a 2020 ELRC decision dismissing his claim that his retirement rendered the proceedings null. The case arose after Timsales employees staged an unprotected strike in July 2018, prompting the company to issue show-cause letters. Chege, accused of absenteeism and damaging property, sought to retire in June 2019.

The court dismissed Chege’s claims for benefits and damages, ruling he had “authored his own termination,” and upheld the ELRC’s judgment with costs.