The Toilet Next to the Gate: Unpacking Constructive Dismissal and the Limits of “Reasonable Accommodation” in Softcare v Mutungi
MLR Issue 011 — A Commentary
I have seen quite a few redeployment files cross my desk that follow the same pattern as this one: an employee develops a medical condition linked to the job, the employer reassigns her to something it considers equivalent, she refuses, and six months later somebody is arguing constructive dismissal in front of a magistrate who has thirty other matters on the Mombasa lower court employment cause list that morning. Most of these settle or die quietly at first instance. This one did not. It went up on appeal, and Lady Justice Jemimah Keli sitting at the Employment and Labour Relations Court at Machakos used it to say something substantive about what “reasonable accommodation” means when an employer picks the accommodation, and the employee does not want it. My difficulty is that having read the judgment twice, I am not convinced the court ever established whose employment contract was really in force at the moment the accommodation was offered. My central thesis is that this is a threshold answer whose omission does more harm to the reasoning than the headline holding indicates.
Background
The case is Softcare Kenya Company Ltd v Mutungi (Employment and Labour Relations Appeal E058 of 2025) [2026] KEELRC 1538 (KLR), delivered at Machakos on 5th June 2026. The claimant, Phauletta Ndinda Mutungi, worked for Softcare Kenya Company Limited as a diaper packer. Her pleaded case was that she had been employed since 1st September 2020 and had served the company for two years and nine months of continuous service before her termination on 11th July 2023 [22], [26]. The company’s pleaded case was materially different: that she had been employed on a fixed-term contract dated 26th December 2022, expiring 25th June 2023 [23], [27]. Nobody in this record ultimates answers which of these two accounts is correct, and that gap matters more than the judgment signals, as I will demonstrate.
What is not disputed is the medical history. In April 2023, the claimant was diagnosed with bilateral high-frequency hearing loss, said to be linked to unprotected exposure to noise in the packaging section [26]. Her doctor advised her to avoid noisy environments. The company’s witness account confirmed as much [27]. On 27th June 2023, two days after the company’s own pleaded expiry date for the fixed-term contract, the company wrote to reassign her from packaging to cleaning duties, expressly citing the medical note as the reason [27]. She refused, asked instead to be moved to the in-house security detail, was told security was outsourced to a third-party contractor and therefore unavailable to her, was taken through a disciplinary process on 6th July 2023 for declining the reassignment, and days later received a letter headed “Confirmation of Voluntary Termination of Employment Contract” [25].
The trial magistrate (Hon. D.K. Kuto, SPM) found constructive dismissal and awarded twelve months’ salary in compensation, amounting to roughly Kshs 259,668, plus a certificate of service, costs, and interest [15]. On appeal, Lady Justice Jemimah Keli set the award aside in its entirety, holding that the company had “reasonably accommodated” the claimant by offering the transfer. On appeal, the court reasoned that her insistence on a security role the company said did not exist amounted to an unreasonable demand, and that the disciplinary process satisfied section 41 of the Employment Act [32], [33]. The court applied the constructive dismissal test drawn from Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), correctly stating that the test for whether an employer’s conduct amounts to a repudiatory breach is objective [33]. Having found no repudiatory breach, the court substituted an award of one month’s notice pay and an order to issue the outstanding certificate of service, on the narrow basis that the certificate had never been produced, a breach of section 51 of the Employment Act [35].
The first gap: an accommodation offered against a contract nobody proved still existed
Every part of this judgment’s reasoning depends on there being a subsisting employer-employee relationship on 27th June 2023, the date the reassignment letter went out. If the company’s own pleaded position is taken at face value, there was none. Its witness statement says in as many words that management “agreed that she should be transferred from packaging operations to cleaning services despite expiry of her employment contract” [27]. That was an admission, made in the company’s own evidence, that the fixed-term contract had already lapsed two days before the reassignment it now relies on as the accommodation the claimant unreasonably rejected.
To my mind, that admission should have compelled the court to decide a threshold question before it ever reached the Coca-Cola test: on what contractual basis was the claimant being managed at all after 25th June 2023? Kenyan employment law does not treat continued engagement past the expiry of a fixed term as a legal vacuum. Where an employer keeps an employee working past the stated expiry date without a fresh written contract, the ordinary inference, which is consistent with the claimant’s own pleaded argument that “failure to give such notice and thereafter continue engaging the employee means that the employee’s contract is automatically renewed” [24], is that the relationship continues on the last agreed terms, whether by renewal or by conduct giving rise to an implied contract. The court never explores this argument at all. It is raised squarely on the record [24], but it disappears from the analysis.
I surmise that the consequence is not academic. If the contract had, on the company’s own account, expired, and continued only by conduct, then the reassignment of 27th June 2023 was not an exercise of management prerogative under an existing contract of employment. Instead, it was the unilateral imposition of a new term on whatever relationship existed by operation of law, at the very moment the claimant had the least contractual protection and the most reason to expect the company to regularise her position rather than redeploy her out of it. A finding either way, that the contract had lapsed and continued by implication, or that it had in fact been renewed in writing and the company’s own witness misspoke, was necessary in response to this threshold question before the court could safely say the claimant was managed, disciplined and separated pursuant to a contract that authorised any of those steps. Advocates acting for claimants in redeployment disputes involving fixed-term contracts should take note: where the employer’s own witness statement concedes expiry, that concession belongs in the opening submissions, not left for the court to notice, infer or, as here, not notice at all.
The second gap: “reasonable accommodation” applied without asking whether the accommodation was reasonable
The court’s finding that the claimant was “reasonably accommodated by the transfer” [32] is an operative statement that is never tested against the one fact that ought to have decided it. The claimant’s own reply, unchallenged in the material the court had before it, pleaded that “the would-be new workstation for the Claimant (as a toilet cleaner) is well inside the factory and within the vicinity of the factory noise” and that the respondent “has not denied” this [24]. That is a direct, on-the-record allegation that the accommodation offered would have exposed a claimant with a medically documented noise-sensitivity condition to the very hazard her doctor told her to avoid, and the judgment records that the company never rebutted it.
A reasonable accommodation analysis, properly conducted, does not ask only whether the employer offered something other than the original noisy post. Rather, it asks very firmly whether what was offered correctly addressed the medical restriction. An employer facing a noise-related medical restriction discharges its duty by locating a genuinely quiet role, not by moving the employee to a different room inside the same noisy building and calling it cleaning rather than packaging. The judgment’s sole engagement with proximity is the observation that “the toilet is next to the gate” [31], drawn from the company witness’s cross-examination, which, if anything, corroborates the claimant’s pleaded case that the new post remained inside the factory perimeter rather than answering it. Nowhere does the court make an affirmative finding that the cleaning role removed the claimant from the noise she needed to avoid. It only asserts reasonableness and moves to the next issue.
The security-role alternative is handled in the same way in reverse: the company’s assertion that security was outsourced and therefore unavailable is accepted without any inquiry into whether the company made any effort to explore that avenue with its contractor, or whether packaging and toilet-cleaning genuinely exhausted the universe of roles open to a two-year-plus employee with a documented workplace injury. A reasonable accommodation inquiry, properly conducted under the standard that this line of Kenyan cases is edging toward, explores the available options; it does not accept a singular choice alluded to by the employer as the full extent of what was possible. Counsel advising employers on similar redeployment files should not read this judgment as authority that any alternative posting discharges the accommodation duty. Advocates advising claimants should plead the proximity and adequacy of the offered accommodation as a standalone issue, supported by an independent noise assessment if one can be obtained, rather than leaving it to inference from the correspondence as happened here.
The wording the court overlooked against the conduct it produced
The termination letter is headed “Confirmation of Voluntary Termination of Employment Contract” and recites that the claimant “expressed your decision to resign” [25]. The company’s own witness statement, describing the same sequence of events, says instead that “the Claimant’s refusal to take up her new role left the management with no choice but to accept her voluntary separation from the Company” [27], which is a fundamentally different explanation. A resignation is an act of the employee; “management ... accept[ing]” a separation is, on ordinary language, an act of the employer accepting the consequence of the employee’s non-compliance, which is closer to a dismissal for misconduct than to a resignation. The disciplinary invitation letter of 4th July 2023 does not once use the word resignation or separation; it describes the 6th July meeting as being convened “to discuss more on how the management can accommodate you ... and to summarise all other discussions in order to find a better solution” [28]. A meeting earlier mentioned to the employee as a further accommodation discussion produced, within days, a letter redefining the outcome as her own voluntary exit. Curious right?
The Coca-Cola v Kagai test the court correctly cites requires an objective evaluation of the employer’s conduct, not acceptance of whichever label the correspondence trail settles on [33]. The court applies that objectivity rigorously to defeat the claimant’s construction of events, and not at all to the company’s own categorisation of the separation as voluntary. That disconnect in analysis is the resounding technical weakness in the judgment: the same doctrinal tool that disposed of the constructive dismissal claim was never deployed when it came to the resignation label or wording, yet the entire disposition rests on it.
It shows up again in the relief the court eventually grants. Having found the separation voluntary and the dismissal claim unproven, the court nonetheless orders the company to pay one month’s notice pay [35], a remedy that ordinarily flows from an employer-initiated termination without notice, not from an employee’s resignation, where notice obligations run the other way. The judgment gives no reasoning to bridge that inconsistency; it seems to follow simply from the outstanding breach of the certificate of service under section 51, which is a different statutory wrong entirely and does not, on its own, generate a notice-pay entitlement. Counsel appealing or defending awards with a similar pattern of facts should isolate this point specifically: an order for notice pay is very hard to reconcile with a simultaneous finding that the employee resigned.
Conclusion
The court reaches a defensible outcome that an employer is not to be penalised in unfair-termination damages every time it redeploys an employee for a documented medical reason, and the employee refuses. But the learned judge arrives there by skipping two questions that the record itself expressly puts in issue. The questions are: whether there was a contract in force permitting the redeployment of the claimant in the first place, and whether the redeployment on offer really answered the medical restriction it was said to address. Advocates litigating the next noise-injury redeployment file, on either side, now have a template for what this court will accept as reasonable accommodation reasoning; and, read carefully, a formula for exactly where that reasoning can be attacked on the facts it left unexamined.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.