Bakery Confectionery, Food Manufacturing And Allied Workers Union (Kenya) v The Wrigley Co. (E.A) Limited (Cause 247 (N) of 2010) [2013] KEELRC 47 (KLR)

The High Court had stayed proceedings arising from the Industrial Court Award in Cause No. 116 of 2004, which award had fixed compulsory retirement at 60 years. The stay was interim and conditional on the hearing and determination of the pending case, and bound the Respondent from retiring the Grievant at 55 during its pendency. The Respondent nevertheless effected the retirement, breaching the order; the Claimant was therefore entitled to file the claim and injunct the illegality.

The retirement was effected in breach of the court order and contrary to the agreed retirement age of 60 later confirmed in the parties' settlement agreement. The Respondent failed to discharge the onus under Section 47(5) to justify the termination, while the Claimant proved wrongful termination on a preponderance of evidence. The termination was not for misconduct but due to the Respondent's misapplication of the law.

The parties had agreed that for the 2009-2010 CBAs a retirement clause would be inserted (voluntary 55, compulsory 60), provided no employee was retired in 2009 or 2010. Interpreting clause 7 in the context of the entire agreement, the court found a deliberate intention by the Respondent, with the parties' concurrence, to exclude the Grievant's impugned retirement from the settlement's scope, leaving the court seized of whether the Grievant ought to have been retired at 55.

Applying the Section 49 factors, the court noted the Grievant lost five years' prospective income through no fault of his own, was terminated not for misconduct but due to the Respondent's misapplication of the law, and wished to be reinstated. Because reinstatement was unreasonable four years on, the court awarded maximum compensation plus general damages, factoring in the duty to mitigate.