Redundancy involving disabled employees

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v. Association for the Physically Disabled of Kenya [2015] eKLR
Cause No 348 of 2013
Industrial Court at Mombasa
J Rika, J.
March 23, 2015
Reported by Nelson K. Tunoi

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Brief facts
The Claimant Union (KUDHEIHA) represents Unionisable Employees from a wide range of Institutions, among them the Respondent (Association for the Physically Disabled of Kenya), a Non-Governmental Organization involved in the rehabilitation and welfare of Persons with physical disabilities.
The Claim was brought on behalf of 24 Physically Disabled Persons, who lost their employment with the Respondent Organization with effect from 31st December 2012. The loss was attributed to a redundancy situation. The Respondent explained in its notices of redundancy issued to the employees on 27th September 2012, that the Organization had incurred persistent losses in the last 4 years, and faced even higher deficits in 2012. All past revenue had been depleted, and the program was faced with possible closure.
The Claimant asked the Court to find that the decision by the Respondent to terminate the Grievants’ contracts offended Clause 22 [a] of the Parties’ Collective Bargaining Agreement; section 15[6] of the Persons with Disabilities Act (cap 133); and article 54[a] of the Constitution of Kenya, 2010. Thus the Claimant Union sought orders to have the Respondent withdraw all letters of termination for the 24 Disabled Employees and the Employees to continue with their employment in order to assist themselves and their families.

Issues

  1. Was termination of employment of members of the Claimant Union based on a genuine redundancy situation and therefore justifiable in substance?
  2. Was the redundancy carried out following the minimum standards of fairness under the Parties’ Collective Bargaining Agreement (CBA) and the employment law?
  3. Whether the grievants were entitled to the remedy of reinstatement.

Employment Law - termination of employment – redundancy - whether the termination of employment of members of the Claimant Union based on a genuine redundancy situation and therefore justifiable in substance – where the affected members of the Claimant Union were persons with disabilities - whether the redundancy was carried out following the minimum standards of fairness under the Parties’ Collective Bargaining Agreement and the law – whether the grievants were entitled to the remedy of reinstatement – Constitution of Kenya, 2010, articles 2(6), 27 & 54 (2); Persons with Disabilities Act (cap 133) sections 11, 15(6) & 32; Employment Act, 2007, section 40

Held

  1. There was little or no challenge from the Claimant Union to the Respondent, on the presence of a genuine redundancy situation. The financial statements exhibited by the Respondent adequately captured the poor health of the Respondent’s finances. The situation was compounded by the lack of support for the Respondent from the Government.
  2. The Respondent had a substantively valid ground in terminating the Grievants’ contracts of employment and had acted in strict adherence to the CBA and the law.
  3. Disabled Persons were however not ordinary employees, whose terms and conditions of employment were fully addressed through the provisions of the Employment Act, 2007 alone; they were a special category of our Society. In determining the issues raised by this dispute, the Court had an obligation to consider other legal instruments that were meant to regulate the lives of Physically Challenged Persons. Justifiability, the Respondent’s decision would have to be weighed against the demands of these instruments.
  4. Section 11 of the Persons with Disabilities Act required the Government to take steps with a view to the full realization of the rights of Persons with Disabilities. Institutions such as the National Council for Persons with Disabilities and the National Development Fund for Persons with Disabilities were created under the Persons with Disabilities Act in furtherance of the said objective.
  5. Section 13 of the Persons with Disabilities Act required the Council to secure 5% of all positions in employment in the public and private sectors for Persons with Disabilities. Article 54(2) of the Constitution of Kenya, 2010, while saying nothing of jobs in the private sector, required the State to ensure the progressive implementation of the principle that at least 5% of the Members in elective and appointive Bodies were Persons with Disabilities.
  6. Section 32 of the Persons with Disabilities Act created the National Development Fund for Persons with Disabilities. Subsection 2 allowed the Fund to contribute to the expenses of Organizations of or for Persons with Disabilities. There was no provision under that law which prohibited the Fund from contributing to such expenses, in the payment of Disabled Persons’ salaries.
  7. Article 27 of the Constitution demanded that the State should promote employment opportunities and career advancement for Persons with Disabilities in the labour market, as well as assist Persons with Disabilities in finding, obtaining, maintaining and returning to employment. The article, like article 54(2) of the Constitution, required the State to employ Persons with Disabilities in the Public Sector. The State was to promote employment of Persons with Disabilities in the private sector through appropriate policies and measures, which could include affirmative action programs, incentives and other measures. The State was required to achieve these objectives through legislation and other measures.
  8. There was a Fund established under the law, to ensure institutions such as the Respondent, continue rendering their invaluable service to the Society. The Fund was to be applied in advancing the rights of the Disabled Persons. What was the purpose of the Fund if not to assist in preservation of Disabled Persons' right to work? It was illogical for the Government to offer to reserve job openings for Disabled Persons, while doing nothing in practice, in preserving existing jobs.
  9. There was no fault with either the Claimant Union or the Respondent; the problem they grappled with, leading to the proceedings, was larger than their respective briefs. At the heart of the problem was the negligence by the Government, even when implored by a former Vice- President, to meet its legal and social responsibility to Persons with Disabilities. Sheltered Workshops enjoyed Government support throughout the civilized world. The Bombolulu Workshop should enjoy the support of the Government, at National as well as County levels. The Respondent should be preserved, as must the right of the Grievants to work.
  10. The Government was not a party to the proceedings. However, the Court recommended that the Government of Kenya release to the Respondent a subsidy of Kshs. 5 million annually from the National Development Fund for Persons with Disabilities.

Order:

  1. The Respondent’s decision terminating the Grievants’ contracts was made within the law and the CBA concluded between the Parties, and was legally fair;
  2. The Grievants were a special class or employees requiring the protection of the Court, and were therefore reinstated to their jobs, without loss of salaries, seniority, privileges and other benefits;
  3. Any terminal benefits which may have been received by the Grievants should be offset from their salaries accrued from January 2013;
  4. The Grievants were directed to report to their former workstations at 8.00 a.m., on 1st of June 2015 for assignment of duty;
  5. Parties to communicate the Court Decision to the Government of Kenya.
  6. No order on the costs.



Kenya Law
Case Updates Issue 014/2015
Case Summaries
JURISDICTION Threshold to be met for the Supreme Court to exercise its appellate jurisdiction in matters alleged to be of general public importance

Gauko Mohamed v Gitonga Mohamed
Civil Application No 19 of 2014
Supreme Court of Kenya at Nairobi
K H Rawal DCJ, P K Tunoi, M K Ibrahim, J B Ojwang & Smokin Wanjala, SCJJ
March 18, 2015
Reported by Beryl A Ikamari

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Brief facts
The suit concerned property, land known as Plot No 6 at Makutano in Nyeri, which was to be inherited as its owner died. At the High Court, the Applicant was granted letters of administration on grounds that she was the sole survivor and beneficiary of the deceased's estate. An objection was raised by the Respondent on grounds that the deceased had 7 other children and he was the only son.
The parties recorded a consent order in which they were to serve as joint administrators and a final decision, to the effect that the property was to be shared equally between them, was made at the High Court. The basis was that other family members had not made claims over the property.
The Applicant lodged an appeal at the Court of Appeal stating that she had not consented to the making of the consent order and that inadequate evidence had been offered to show the identity of the Respondent's biological father. The Court of Appeal dismissed the appeal and also dismissed an application seeking leave to appeal to the Supreme Court.
The Applicant approached the Supreme Court seeking a review of the Court of Appeal decision which denied her leave to appeal to the Supreme Court.

Issue:

  1. Whether the suit raised matters of general public importance over which the Supreme Court had appellate jurisdiction.

Jurisdiction-jurisdiction of the Supreme Court-matters of general public importance-whether, in a succession cause, paternity issues and a consent order allegedly recorded without consent were issues of general public importance-Constitution of Kenya 2010, article 163(4)(b). Read More...

Held:

  1. The matter was a succession cause between two parties in which the High Court assessed evidence of proof of paternity and determined that the property in question was to be shared equally amongst the parties. The Applicant had not shown that the circumstances of the case elevated it into a matter of general public importance.
  2. The jurisdiction of the Supreme Court could only be invoked in accordance with the Constitution and the law. The Applicant failed to demonstrate specific elements of general public importance which would meet the threshold set in article 163(4)(b) of the Constitution of Kenya 2010.

Application dismissed.
LABOUR LAW When a claim for discrimination arose out of the failure to shortlist internal candidates

Jane Achieng & another v University of Nairobi
Cause No. 2144 of 2012
Employment & Labour Relations Court at Nairobi
L Ndolo, J
April 10, 2015
Reported by Teddy Musiga

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Brief facts:
The claimant’s claim arose from a job advertisement for 8 positions in the establishment of Librarian. They applied for the advertised positions but were never shortlisted. Instead, the respondent shortlisted 7 external candidates. The gist of the claimant’s claim was that by failing to shortlist them for the position of Librarian, the respondent discriminated against them. Specifically, they contended that in evaluating their respective applications, the respondent failed to consider their achieved qualifications and long experience as relevant and equivalent for the advertised positions. They also cited a wide range of instances where the respondent had effected staff promotions within the University contrary to the University policy on Training, Promotion & Establishment (Kagiko report). The respondent however pleaded that the recruitment had already taken place and binding employment contracts signed with the successful candidates and added that only 3 of the 8 positions were filled, leaving 5 vacancies.

Issues:

  1. Whether a recruitment process initiated & completed by the respondent is discriminatory for not considering internal applicants (claimants) for the job advertised.
  2. What are the available remedies for an aggrieved claimant to a recruitment process where the recruitment & selection process is already completed?

Labour Law – Employment Law - Employment relationship –claim for unfair discrimination – claim where the respondent’s failed to shortlist internal candidates - Whether a recruitment process initiated & completed by the respondent is discriminatory for not considering internal applicants (claimants) for the job advertised – article 27, 41; Constitution of Kenya, 2010; sections 5 Employment Act;

Labour Law – Employment Law – adducing evidence in employment disputes – burden of proof in employment disputes – circumstances in which the burden of proof may shift from the employee to the employer – where the employee claims unfair discrimination from the employer – section 5 Employment Act. Read More...

Held:

  1. Employment and Labour rights were well secured as part of the Bill of Rights under article 41 of the Constitution of Kenya, 2010. It followed therefore that discrimination in the employment sphere was outlawed in terms of article 27 of the Constitution of Kenya, 2010 as well as section 5 of the Employment Act, 2007.
  2. In adjudicating disputes between employers and employees, the Employment & Labour Relations Court was well advised to respect decisions made by the employer in as far as they complied with the law and internal policies. However, where the employer’s actions failed to comply with the relevant legal and policy parameters, the court was obliged to intervene.
  3. From an examination of the specifications contained in the job advertisement giving rise to the suit, there was a departure from the Kagiko report (the respondent’s policy on Training, Promotion & Establishment) in as far as the experience period was reduced from 6 years to 3 years. The respondent did not offer any explanation for that departure.
  4. An employer against whom an allegation of unfair discrimination was made by an employee was required to prove that the action complained of was in fact fair. That was one of the unique features of employment and labour law where the burden of proof shifts from employee to the employer. The reason for that was that in an employment arrangement, the employer possesses information that would not ordinarily be within the reach of the employee. The employee is therefore under a duty to produce all information within its possession that would aid the court to arrive at a just and fair determination of the disputes before it.
  5. The respondent chose to skirt around the issues raised by the claimants and failed to respond to most of the issues raised. In the absence of any explanation, the court concluded that the respondent knowingly manipulated the recruitment process to the claimant’s detriment.
  6. In order to achieve the ideal skills and competencies mix, an employer was expected to recruit both internally and externally. While recruiting exclusively from within exposed an employer to the vagaries of inbreeding, exclusive external recruitment eroded employee morale and defeated loyalty.
  7. The Employment and Labour Relations Court had to where necessary require employers to provide full information for just and fair determination of industrial disputes. That would have included an audit of the establishment mix, including the ethnic balance, in public institutions. That had to be the case if we were to translate the provisions in the Constitution of Kenya, 2010 from mere aspirations to real life experiences.

In filing the existing vacancies within the Library establishment and within the University generally, the respondent had to adhere strictly to the law and its own internal policies and guidelines
In undertaking future recruitment, the university had to examine its establishment mix bearing in mind the ethnic diversity in the country.
Prayers for damages and specific performance rejected.
Respondents to meet the costs.
CONSTITUTIONAL LAW

Court declines to grant orders to stop the implementation of the Kiambu County Finance Act 2014

Robert N Gakuru & another v County Government of Kiambu & another
Petition No 603 of 2014
(Consolidated with JR App No 6 & 22 of 2015 & Petition 63 of 2015)
High Court at Nairobi
Isaac Lenaola, J
March 27, 2015
Reported by Beryl A Ikamari

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Brief facts

The Petitioners sought orders to halt the implementation of the Kiambu County Finance Act 2014 as concerned fees, rents and/or levies with respect to slaughterhouses, Madaraka and Jamhuri Markets, residential houses in Thika and carbon dioxide infrastructure maintenance fees.
The grounds on which the orders were sought were that the Kiambu County Finance Act 2014 had been enacted without public participation, was not gazetted and introduced exorbitant fees, some of which concerned roads which were not maintained by the Kiambu County Government.

Issue:

  1. Whether the circumstances of the case warranted the grant of orders to stop the implementation of the Kiambu County Finance Act 2014.

Constitutional Law-conservatory orders-considerations governing the grant of conservatory orders-whether the implementation of the Kiambu County Finance Act 2014 would be stopped. Read More...

Held:

  1. Stay orders were discretionary and the Court had to be careful not to pre-judge issues which were to be determined at the substantive proceedings. Generally, a decision that had been implemented fully was not one that could be stayed as there was nothing which could be stopped from continuing or happening.
  2. Conservatory orders facilitated the ordered functioning of public agencies and upheld the adjudicatory authority of the Court. Conservatory orders were to be granted on the inherent merit of a case, bearing in mind the public interest, constitutional values and the proportionate magnitude and priority levels attributable to the relevant causes.
  3. In the process of enacting the Kiambu County Finance Act 2014 there had been public notices and meetings held. However, the Court could not determine conclusively whether that public participation met the required constitutional threshold at an interlocutory stage.
  4. The Kiambu County Finance Act 2014 was gazetted on November 25, 2014 and there was no issue on that question.
  5. The Kiambu County Government could impose reasonable taxes and the question on whether the taxes were reasonable was not one that would be determined at an interlocutory stage.
  6. The Kiambu County Government would suffer great prejudice if it were stopped from levying charges and collecting taxes as its required revenue in order to perform its functions.
  7. Depending on the outcome at the conclusion of the Petition, the parties could make refunds for underpaid or overpaid charges and taxes.

Application dismissed.
PUBLIC AUCTION Illegality of conducting an auction in the same transaction in stages

Maina Wanjigi & another v Bank of Africa & 2 Others
High Court at Nairobi
Civil Case No 237 of 2014
E K O Ogola, J
March 13, 2015
Reported by Andrew Halonyere

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Brief facts:

The applicant brought an application seeking orders of stay of an intended sale purported to emanate from an auction by the respondents.
According to the applicants, the suit property was advertised for sale by public auction in the Daily Nation on the 26th May, 2014 by the 2nd respondent. The Auction was slated to take place on the 3rd June, 2014 at 11.00am atthe 2nd respondent’s offices.
The Applicants alleged that the 2ndrespondent conducted two sessions of the auction, one at 12:30 pm and another at 3:30 p.m. contrary to the Auctioneers rules. It was submitted that there was no legal and valid advertisement made in respect to the 2nd Auction over the same property arguing that it was in clear contravention of the Auctioneers rules, and that the property was given out to the 3rd highest bidder contrary to the Auctioneers Rules and in blatant abuse of the law.

Issues:

  1. Can an auction in the same transaction be conducted in stages during the cause of the day?If yes, does that compromise the integrity of the process?
  2. Whether such an auction is lawful.

Public auction – auction of immovable property – whether an auction in the same transaction could be conducted in stages during the cause of the day – whether such an auction would compromise the integrity of the process –Auctioneers Act rule 17 (1) (b)

Civil Practice and Procedure – security for costs – where proceedings were brought about by the unlawful conduct - whether defendants could realize costs. Read More...

Auctioneers Act
Rule 17 on the Auctioneers rules provides that;

a. a public auction shall take place between the hours of 10.00 a.m. and 10.00pm; and in a venue open to and accessible to the public; and
b. sub-rule 4; The highest bidder shall be the purchaser subject to compliance with the conditions of sale.

Held:

  1. Under Rule 17 (1) (b) an auction of immovable property may take place between 10.00 a.m. and 10.00 p.m. That meant that an auction of immovable property advertised to take place at 11.00 a.m. may proceed upto 10.00 p.m. That view, however, necessarily implied that the auction process had to be uninterrupted transaction. The moment the chain of causation was interrupted, rather than in the normal course of the proceedings for example to break for tea, if that were possible in a single transaction, the entire process must commence afresh.
  2. There was a reason why the auction was called Public Auction and not private auction. A public auction was a process open to the public. The public only come to learn about it when it is advertised. The moment the advertised day and time comes, and the auction is not responsive and it is stoped for that reason, a valid similar process could only start with a fresh advertisement. In the instance case, the public was not aware of the afternoon session,whatever transpired in the afternoon was a private arrangement shared into by the parties before the court, and for all intents and purposes, was not a public auction. Therefore no public auction took place on 3rd June 2014 involving the suit property.
  3. To hold that the Plaintiff ratified and validated the process by attending the afternoon session would amount to giving the auctioneer freedom to change the auction rules with impunity whenever he wills, and especially whenever he thinks that he could wait for a none present bidder to give a higher bid. In that case there would be no need to stage a public auction. The auctioneer might as well develop and carry out his own rules as he pleased.
  4. An auction could not be held in stages during the cause of a day, where in one or more stages, the auctioneer awaits for hitherto unknown bidders, or picking bidders enroute like a moving bus or matatu picking passengers. If that was allowed to happen the entire integrity of the public auction process would be compromised, and with it the rule of law. That would open doors to speculation with the possibility of the auctioneer colluding with hitherto unknown bidders to defeat the bids put on the floor of the auction house. Such a process, if allowed, would be unlawful.
  5. Whatever transpired on 3rd June 2014 purported to be a public auction, was not a public auction, it was an unlawful process which was incapable of conferring any title or proprietary rights to the alleged successful bidder the 3rd Defendant.Therefore thethird defendant had not acquired title which required to be protected by law. A title could only be acquired through a lawful process.
  6. The 1st Defendant’s right to realise security could not be fettered or frustrated any longer. The current proceedings were brought about by the unlawful conduct of the Auctioneer, the 2nd defendant. If the auctioneer did the right thing the 1st defendant would have realised its security.

Orders
The Public Auction staged for the sale of the suit property on 3rd June 2014 and all the consequences arising therefrom were set aside.
(b) The 1stand 2nddefendant’s were at liberty to advertise afresh the sale by Public Auction of the suit property, immediately, without giving a fresh statutory notice.
(c) The 3rddefendant to be refunded all the monies paid by him to the 1st or 2nd defendant pursuant to the aforesaid alleged public auction stated on 3rd June 2014.
(c) The costs of the application were for the Plaintiffs and the 1st defendant and shall be paid by the 2nd defendant.