Automated Summary
Key Facts
The claimant, Henry Abel Onyango, was employed by the National Oil Corporation of Kenya as a Safety Health Environment and Quality Manager on permanent and pensionable terms from March 2013. In December 2018, his contract was unilaterally converted to a fixed-term agreement for three years, which he refused. The respondent terminated his employment on January 31, 2019, offering a redundancy package. The court found the termination unfair, citing failure to follow due procedure under section 40 of the Employment Act and lack of consultation. The court awarded two months' compensation (Kshs 900,000) and ordered the respondent to issue a certificate of service. The respondent's counterclaim for repayment of per diem advances was dismissed.
Issues
- The court determined whether the termination of the claimant's employment was lawful, finding no dispute over the existence of the contract and its termination as per the letter on record.
- The court found the termination process unfair, citing failure to comply with section 40 of the Employment Act (notice and consultation) and the unilateral imposition of a fixed-term contract without the claimant's agreement, violating his rights under section 45 of the Act.
- The court dismissed the respondent's counterclaim for repayment of per diem advances, as the arrangement was between the respondent and the parent Ministry, and the issue was not raised during separation.
- The court examined claims of discriminatory pay and the claimant's entitlement to continued salary until retirement, finding no discrimination and deeming the salary claim unjust. The claim for acting duty allowance was also dismissed as time-barred.
Holdings
- The respondent's counterclaim for repayment of Kshs 212,667.00 in per diem advances was dismissed. The court found the evidence showed the arrangement was between the respondent and its parent ministry, and the claimant had no liability at the time of separation.
- The court found the termination of the claimant's employment to be unfair and unlawful. The termination was deemed procedurally unfair due to the respondent's failure to comply with section 40 of the Employment Act (notice and consultation requirements) and substantively unfair as the fixed-term contract was imposed unilaterally without the claimant's concurrence. The court awarded 2 months' compensation totaling Kshs 900,000.00 (less PAYE) for the unfair termination.
- The court dismissed the claim for compensation until retirement age or 60 years, as it found no justification for such an award. It also determined that the claim for acting/special duty allowance (Kshs 993,330.00) was time-barred under section 90 of the Employment Act and granted the claimant a certificate of service.
Remedies
- The counterclaim filed by the respondent is dismissed.
- The respondent is required to deliver a certificate of service forthwith.
- The respondent must pay Kshs 900,000.00 by September 01, 2023, failing which interest will be payable at court rates.
- The court declared the termination was unfair and unlawful.
- The respondent must pay costs of the suit and counterclaim.
Monetary Damages
900000.00
Legal Principles
The Court found the termination of the claimant's employment to be unfair, citing failure to comply with section 40 of the Employment Act (notice and consultation) and section 45 (termination unrelated to the claimant's contract or capacity). The judgment also referenced constitutional Article 41(1) on fair labour practices, emphasizing procedural and substantive fairness in employment decisions.
Cited Statute
- Employment Act, 2007
- Industrial Court Act
- Constitution of Kenya 2010
Judge Name
Byram Ongaya
Passage Text
- The claimant had a clean record and desired to continue in employment. The aggravating factors against the respondent were the failure to comply with section 40 of the Employment Act and failing to consult the claimant as he was already protected by the permanent and pensionable terms of service.
- The Court returns that the termination was unfair. While it is true that the officers who declined to accept the fixed term contract, it is clear that the situation amounted to a redundancy. The respondent while purporting to offer a redundancy package, clearly failed to follow the due procedure of a notice and consultation especially as provided in section 40 of the Employment Act on notice to the claimant and area labour officer.
- The Court awards 2 months' compensation for the unfair termination making Kshs 450,000 x 2 = Kshs 900,000.00 (less PAYE).