ZACHARIAH SAMBAY V NAROK UNIVERSITY COLLEGE [2013] KEELRC 367 (KLR)
The bottom line
#A Kenyan court ruled that 'redeploying' an employee to an institution that refused to take him was really unfair dismissal, awarding 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Who is an employer
An employer is any person or body that has entered into a contract of service, defined broadly under the Employment Act, Labour Relations Act, Labour Institutions Act and Work Injury Benefits Act, supplemented by four common law tests.
The Court examined the statutory definitions in the Employment Act and Labour Relations Act (identical wording), the Labour Institutions Act (different wording) and the Work Injury Benefits Act (declared unconstitutional but with a similar definition). It then outlined the common law tests: control, ownership of tools, chance of profit/risk of loss, and integration/organization.
Whether Sambay was an employee of Narok or Moi
Sambay was an employee of both Moi and Narok; Narok was the employer with the closest connecting factors and was properly sued alone.
Narok Campus was an appendage of Moi University which exercised control over it; the institutions were components of the same economic and academic enterprise. Narok paid Sambay's salary, controlled and disciplined him. The Court held that whether deemed joint or separate employers, bringing one or both to court does not affect the claim's validity.
Whether the contract was fairly terminated
The redeployment amounted to unfair termination lacking substantive justification and violating the minimum statutory disciplinary procedure.
The disciplinary committee found no direct evidence of the theft charge; the redeployment was a colourable exercise to rid the Respondent of an employee it did not recruit, failed to appraise and could not pin on any offence. Redeployment is not a known disciplinary sanction under the Employment Act, and sending Sambay to Moi, where he had never worked, was unjustifiable.
Suitable remedy
Reinstatement declined; 12 months' gross salary (Kshs. 577,752) awarded as compensation.
More than three years under Section 12 of the Industrial Court Act had passed; Narok was evolving toward full autonomy; and mutual trust and confidence could not be rebuilt. Compensation was held to be the suitable remedy, calculated at 12 months' gross salary.
Legal principles established
#- An employer is broadly defined under the Employment Act, Labour Relations Act, Labour Institutions Act and related statutes, and the common law tests (control, ownership of tools, chance of profit/risk of loss, integration/organization) determine whether an employment relationship exists.
- Employees must not be hampered by the different business and legal permutations adopted by employers in seeking remedies for employment wrongs; institutions forming one economic and academic enterprise may be deemed joint employers.
- An employer's default in complying with transitional statutory requirements (such as appraisal under Order 16 of the Legal Notice) cannot be visited upon the employee or result in automatic termination.
- Termination requires both substantive justification (valid reasons) and a fair procedure; imposing a non-existent disciplinary sanction such as redeployment violates the minimum statutory disciplinary procedure.
- Reinstatement is a discretionary remedy to be used sparingly, though in flagrant employment violations the Court must not hesitate to grant the full benefit of employment protections.
Court orders
#- 1.Declaration that the redeployment of the Claimant by the Respondent to Moi University amounted to unfair termination of the contract of employment
- 2.The Respondent shall pay to the Claimant 12 months' gross salary amounting to Kshs. 577,752
- 3.The amount shall be paid within 30 days of the delivery of the Award
- 4.No order on the costs
- Jurisdiction invoked
- Industrial Court Act No. 20 of 2011 (dispute over unfair termination, Section 12)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ZACHARIAH SAMBAY V NAROK UNIVERSITY COLLEGE [2013] KEELRC 367 (KLR)", Case Analysis (2013). Cause 705 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/367/eng@2013-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.