Zachary Mbugua Maina v Medecins Sans Frontieres, Switzerland [2013] KEELRC 167 (KLR)
The bottom line
#Kenya's employment court ruled the redundancy genuine but the process unfair, awarding an employee four months' salary because unproven corruption allegations were never investigated.
What this practically means
#Executive summary
#Key legal issues
#Validity of the redundancy reason
The redundancy was genuine; the merger of MSF supplies functions under the Kenya Supply Unit was a valid operational reason and not a pretext to rid the Respondent of the Claimant.
The Respondent demonstrated through its witness that a decision was made at the Geneva Head Office in 2008 to merge the supplies functions of MSF Switzerland, France, Belgium and Spain. The Claimant was aware of the restructuring, having attended integration meetings. All three SUKA Nairobi employees were affected, and SUKA Nairobi ceased to exist in November 2011. The two new hires facilitated closure and left with the office, so the position was not refilled.
Fairness of the termination procedure
The procedure was deficient; the corruption allegations were never investigated, the suspension was never lifted, and the allegations were used to hasten the Claimant's exit, making the termination procedurally unfair.
The Claimant was suspended on procurement corruption allegations that were referred to Geneva, but no investigation followed and he was never cleared or charged. Redundancy notice was handed over informally at a restaurant without prior notification. The Court characterized the corruption allegation as a procedural rather than substantive issue, entitling the Claimant to minimal compensation of 4 months' salary.
Adequacy of severance paid
The severance package of Kshs. 2,224,530, including compensatory payment for 12 years at Kshs. 2,062,697, conformed to Section 40 of the Employment Act and no further severance was awardable.
Although the Respondent did not use the term 'severance pay', its payment schedule included 'other allowance' of Kshs. 2,887,773 and a compensatory payment of 12 years at Kshs. 2,062,697, exceeding the statutory minimum of 15 days' pay per year worked (computed at Kshs. 1,345,273). Differences in legal-cultural terminology between the international NGO's usage and Kenyan statutory language did not amount to violation of minimum standards.
Legal principles established
#- Disciplinary processes are not invalidated by the presence of a genuine redundancy situation; an employer suspending an employee on disciplinary allegations must conclude investigations and either clear or convict the employee.
- A court cannot award contractual damages and statutory compensation for the same employment wrong.
- An employer's use of different terminology in payment schedules does not defeat statutory minimum standards, such as the severance pay requirement under Section 40 of the Employment Act.
Court orders
#- 1.Declaration that termination was procedurally unfair
- 2.The Respondent shall pay the Claimant Kshs. 717,460 in compensation for the procedural lapse
- 3.No order on the costs
- Jurisdiction invoked
- Jurisdiction as the Industrial Court over employment and labour relations disputes under the Industrial Court Act; dispute referred as unfair and unlawful termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zachary Mbugua Maina v Medecins Sans Frontieres, Switzerland [2013] KEELRC 167 (KLR)", Case Analysis (2013). Cause Number 961 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/167/eng@2013-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.