Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedInterlocutory application in pending cause (Memorandum of Claim filed 11th June 2012)· [2013] KEELRC 465 (KLR)

KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS UNION V NATIONAL SOCIAL SECURITY FUND [2013] KEELRC 465 (KLR)

Industrial Court (Employment and Labour Relations Court)
21 March 2013
LNLINNET NDOLO
1,349 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court let an employer's voluntary early retirement scheme proceed but extended the deadline, ruling VER terms can't be standardised or forced into negotiation.

What this practically means

#

Executive summary

#
This is a ruling on an interlocutory application brought by the Claimant on 18th March 2013 under Certificate of Urgency in a pending dispute over inclusion of a Voluntary Early Retirement (VER) clause in the 2011-2013 Collective Bargaining Agreement. The Respondent's Managing Trustee had, by circular of 1st March 2013, announced a Government-approved VER Scheme offering severance pay capped at 10 years, Kshs. 1,000,000 ex-gratia payment, a 30% mortgage rebate and one month's pay in lieu of notice, with a 22nd March 2013 application deadline. The Claimant sought orders compelling negotiation in good faith before the deadline or, in the alternative, suspension of the Scheme pending the outcome of the main cause. The Claimant argued that the Scheme flowed from a Job Evaluation exercise undertaken without its involvement, that it was restrained by interim orders in Cause No. 1796, that the VER carried a veiled threat of redundancy, and that the terms were inferior to those in a 2nd November 2010 staff update and those offered to a former employee, Albert Odero. The Respondent countered that the offer was purely voluntary, that 148 employees had applied, and that Odero had left under different circumstances. The court disregarded the Claimant's unsubstantiated allegation regarding the integrity of the circular, applied authorities on the voluntary nature of VER, held that VER terms cannot be standardised as they depend on affordability and employer circumstances, and disallowed the application to suspend the Scheme. It found the time given to staff inadequate and extended the deadline to close of business on 2nd April 2013, with each party bearing their own costs.

Key legal issues

#
01

Integrity of the staff circular (alleged discrepancy between Government-approved terms and communicated terms)

Holding

The allegation was disregarded for lack of evidence and was found unfortunate and unwarranted

Reasoning

The Claimant intimated that terms approved by the Government may have been superior to those communicated by the Managing Trustee, relying on similarity of reference numbers. The Respondent countered that reference numbers are merely for filing purposes. The court found no evidence supported the allegation and disregarded it in reaching its decision.

p. 3
02

Whether VER terms inferior to earlier schemes justify halting implementation

Holding

No; VER terms are specific and time bound and depend on affordability, so no immutable precedent can be established

Reasoning

The court held that VER schemes are by nature and design specific and time bound, with terms determined largely by affordability. Since employer circumstances change, standard terms cannot be guaranteed for all time, and past more favourable terms (as in the 2nd November 2010 update or Albert Odero's case) do not bind current schemes.

p. 3
03

Adequacy of time to respond to the VER offer

Holding

The time given to staff to submit applications was inadequate; deadline extended

Reasoning

Although the court declined to suspend the Scheme, it found that the period between the 1st March 2013 circular and the 22nd March 2013 deadline was too short for staff to make informed decisions and applied its discretion to extend the deadline.

p. 4

Legal principles established

#
  • VER is a voluntary venture between a willing employer and a willing employee, and VER terms vary with the employer's circumstances and affordability; no immutable precedent in VER terms can be established

Court orders

#
  1. 1.Claimant's application for suspension of the VER Scheme pending negotiation is disallowed
  2. 2.Deadline for submission of VER applications extended to close of business on Tuesday, 2nd April 2013
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Original employment and labour relations jurisdiction; application under Certificate of Urgency in a pending cause

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS UNION V NATIONAL SOCIAL SECURITY FUND [2013] KEELRC 465 (KLR)", Case Analysis (2013). Interlocutory application in pending cause (Memorandum of Claim filed 11th June 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/465/eng@2013-03-21

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