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ELRCPartially AllowedCause No 1937 of 2011· [2012] KEELRC 114 (KLR)

IRENE NASERIAN KARBOLO V KENYA AIDS NGOS CONSORTIUM [2012] KEELRC 114 (KLR)

Industrial Court of Kenya
18 October 2012
4,407 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that an employer who cannot prove the reason for firing you owes you compensation, here nearly Ksh.900,000.

What this practically means

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Executive summary

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Irene Naserian Karbolo, employed by Kenya AIDS NGOs Consortium (KANCO) on 2 March 2009 as a Program Officer in the Policy and Advocacy Department, was terminated by letter dated 2 June 2011 on the ground that the Child Rights Project had ended and KANCO could no longer sustain her salary. She sued claiming a declaration of unlawful termination, service pay, notice pay, June 2011 salary, general damages and damages for delayed May 2011 salary. A preliminary objection that her verifying affidavit was defective for using the word 'plaintiff' was rejected, the court holding that a defective verifying affidavit does not invalidate a statement of claim and that justice is administered without undue regard to technicalities under Article 159(2)(d) and Section 20(1) of the Industrial Court Act. On the merits, the court found the alleged reason for termination, if proved, would amount to redundancy, requiring proof that the Claimant's office was manifestly and effectively abolished plus compliance with Section 40 of the Employment Act. The Respondent failed to prove the reason as required by Section 43, rendering the termination unfair under Section 45. The court awarded one month's pay in lieu of notice, the unpaid June 2011 salary, and the maximum twelve months' gross salary compensation under Section 49(1)(c), holding that the Employment Act's statutory compensation overrode the common law bar on general damages in the cited Court of Appeal decisions. Service pay was refused because the Claimant was an NSSF member. The delayed May 2011 salary was held to be discrimination under Section 5(2) of the Employment Act and an unfair labour practice under Article 41(1), attracting three months' salary. Judgment of Ksh.899,300 plus interest was entered, with 75% costs to the Claimant.

Key legal issues

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01

Whether the termination was fair or unfair

Holding

The termination was unfair because the alleged reason (end of the Child Rights Project amounting to redundancy) was not proved, the office held by the Claimant having never been shown to be abolished, and the redundancy procedure under Section 40 was not followed

Reasoning

The court held that if the reason proved it would amount to redundancy, requiring proof that the office was abolished and compliance with Section 40 procedure including notice to the employee and Labour Officer and fifteen days pay per year of service. The Respondent failed to prove the reason under Section 43, so the termination was unfair under Section 45 and the procedure invoked was also unfair.

p. 8
02

Whether the verifying affidavit referring to the Claimant as 'plaintiff' was defective

Holding

The affidavit was not defective; 'plaintiff' and 'claimant' are substantially the same, and a defective affidavit does not invalidate the statement of claim

Reasoning

The court consulted Black's Law Dictionary definitions, noted the Claimant's identity was not in doubt and that objections to pleadings should be raised early. Guided by Article 159(2)(d) and Section 20(1) of the Industrial Court Act, it held the objection lacked merit as justice must be administered without undue regard to procedural technicalities.

p. 7
03

Remedies for unfair termination

Holding

Claimant awarded one month pay in lieu of notice (Ksh.52,900), June 2011 salary (Ksh.52,900) and maximum twelve months' gross salary compensation (Ksh.634,800) under Section 49(1)(c), service pay refused

Reasoning

The contract contained no notice provision, so 28 days' statutory notice applied; the court found on the balance of probabilities that notice was served on 6 June 2011. No mitigating factors were shown to reduce compensation below the twelve months maximum. Service pay failed due to NSSF membership under Section 35(6)(d).

p. 8
04

Claim of discrimination arising from delayed May 2011 salary

Holding

No constitutional discrimination established, but the late isolated payment constituted discrimination under Section 5(2) of the Employment Act and an unfair labour practice under Article 41(1); awarded three months' salary (Ksh.158,700)

Reasoning

The Claimant failed to pinpoint any of the constitutional grounds of discrimination under Article 27(5). However, the Respondent's witness admitted the May 2011 salary was paid late and outside the usual practice, which the court found to be a discriminatory employment practice under Section 5(2) and an unfair labour practice under Article 41(1) of the Constitution.

p. 9

Legal principles established

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  • A crucial element of redundancy is the manifest and effective abolition of the office held by the employee; mere redefinition of duties or desire to change the office holder does not constitute redundancy
  • Under Section 43 of the Employment Act the employer bears the burden of proving the reason or reasons for termination; failure to do so renders the termination unfair under Section 45
  • A defective verifying affidavit does not invalidate a statement of claim; procedural technicalities should not impede justice
  • Statutory compensation under Section 49(1)(c) of the Employment Act overrides the common law position barring general damages in termination suits
  • Isolating an employee from an employer's general salary payment policies and practices amounts to an unfair labour practice contravening Article 41(1) of the Constitution

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment by the Respondent was illegal, unjustified and unfair
  2. 2.Payment to the Claimant of a sum of Ksh.899,300/= plus interest at court rates from the date of judgment till full payment
  3. 3.Payment to the Claimant of 75% of the costs of this cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 159(2)(1)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 27(5)
  • Constitution of Kenya, 2010Article 41(1)
  • Industrial Court Act, 2011Section 20(1)
  • Industrial Court Act, 2011Section 12(3)
  • Employment Act, 2007Section 2 (definition of redundancy)
  • Employment Act, 2007Section 5(2)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 35(6)(d)
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49(1)(c)
  • Industrial Court (Procedure) Rules, 2010Rule 5(1) and Rule 5(2)

Cases cited (2)

  • Walter Musi Anyanje - Vs – Hilton International Kenya Ltd
  • Tom Njiri
    Civil Appeal No.269 of 2003; [2008] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Industrial Court Act, 2011, Section 12(3)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "IRENE NASERIAN KARBOLO V KENYA AIDS NGOS CONSORTIUM [2012] KEELRC 114 (KLR)", Case Analysis (2012). Cause No 1937 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/114/eng@2012-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.