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ELRCPartially AllowedCause 705 of 2011· [2013] KEELRC 367 (KLR)

ZACHARIAH SAMBAY V NAROK UNIVERSITY COLLEGE [2013] KEELRC 367 (KLR)

Industrial Court of Kenya
3 May 2013
4,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Zachariah Sambay was employed by Moi University on 21st February 2008 as an Assistant Security Officer and immediately deployed to Narok Campus, which became Narok University College under Legal Notice No. 101 of 2008. He was suspended on 29th October 2009 over alleged gross misconduct, including involvement in theft of University property and loss of an Occurrence Book. The Staff Disciplinary Committee found no direct evidence on the specific charges but concluded his integrity was questionable and that he was negligent over the missing Occurrence Book. By letter dated 30th March 2010, Narok warned him and 'redeployed' him to Moi University, which declined to receive him back. Sambay sued Narok, seeking a declaration of unfair termination, reinstatement, full salary from suspension, or alternatively 12 months' salary as compensation. The Court framed four questions: who is an employer; whether Sambay was employed by Narok or Moi; whether his contract was fairly terminated; and the remedy. It held that Moi and Narok were components of the same economic and academic enterprise and could be deemed joint employers, with Narok bearing the closest connecting factors. It found the redeployment a colourable exercise amounting to unfair termination, lacking substantive justification and violating the minimum statutory disciplinary procedure, the employer having also failed to appraise Sambay as required by Order 16 of the Legal Notice. Reinstatement was declined as more than three years had elapsed, and 12 months' gross salary of Kshs. 577,752 was awarded, payable within 30 days, with no order on costs.

Key legal issues

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01

Who is an employer

Holding

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.

Reasoning

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.

p. 3
02

Whether Sambay was an employee of Narok or Moi

Holding

Sambay was an employee of both Moi and Narok; Narok was the employer with the closest connecting factors and was properly sued alone.

Reasoning

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.

p. 6
03

Whether the contract was fairly terminated

Holding

The redeployment amounted to unfair termination lacking substantive justification and violating the minimum statutory disciplinary procedure.

Reasoning

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.

p. 6
04

Suitable remedy

Holding

Reinstatement declined; 12 months' gross salary (Kshs. 577,752) awarded as compensation.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Declaration that the redeployment of the Claimant by the Respondent to Moi University amounted to unfair termination of the contract of employment
  2. 2.The Respondent shall pay to the Claimant 12 months' gross salary amounting to Kshs. 577,752
  3. 3.The amount shall be paid within 30 days of the delivery of the Award
  4. 4.No order on the costs

Authorities

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Legislation

  • Employment ActSection 2; Sections 41, 43 and 45
  • Labour Relations ActSection 2
  • Labour Institutions ActSection 2
  • Work Injury Benefits ActSection 4
  • Occupational Safety and Health Actdefinitions of 'owner' and 'occupier'
  • Moi University ActCap 210 A; Section 5
  • Universities ActNo. 42 of 2012; Section 2; Section 71; Section 75
  • Narok University Order / Legal Notice No. 101 of 2008Order 3; Order 16; Order 25
  • Industrial Court ActSection 12

Cases cited (1)

  • Child Welfare Society of Kenya [Isiolo Children's Home] v. Margaret Bwire
    Industrial Court Cause Number 684 of 2011
Jurisdiction invoked
Industrial Court Act No. 20 of 2011 (dispute over unfair termination, Section 12)

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, "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.