James Sande Amuyeka & 6 others v Super Foam Limited [2015] KEELRC 799 (KLR)
The bottom line
#Kenya's Employment Court upheld an employer's right to transfer staff in writing, ruling that employees who refuse a reasonable transfer and stay away can be fairly dismissed.
What this practically means
#Executive summary
#Key legal issues
#Validity of the employer's unilateral transfer of the claimants
The transfers were lawful. The employer has the power to transfer employees and the transfer here was effected in writing with reasons, consistent with business needs; refusal to report to new stations was unjustified.
Section 10(3)(d) of the Employment Act requires particulars of place of work and section 13 requires written statements of any change in particulars. The court held that changes to an employment contract must be in writing, reasonable and capable of being performed. The respondent issued written transfer letters effective the next day; the claimants' refusal to report on grounds they lacked capacity was unfounded, the responsibility to train resting on the employer only where needed. The termination flowing from the refusal was therefore fair and procedural.
Whether the termination was fair and with valid reason
The termination on 28th December 2011 was with valid reason and fairly done; the claimants failed to discharge their burden of showing otherwise.
Under section 43 the employer must prove reasons for termination. The court found the reasons - refusal to report to work despite transfer letters, compulsory leave, unheeded show cause notice and failure to resume duty as directed - were validly established and uncontested. The claimants bore the duty of showing the reasons were not fair, valid or justified and failed. From 28th December 2011 they ceased to be employees.
Effect of the conciliation agreement and reinstatement
The claimants were never reinstated as they refused to report to the allocated stations; the conciliator's agreement was not enforceable in this case and the claimants opted out of its terms.
The respondent was willing to reinstate the claimants per the conciliation, writing to them on 23rd April 2012 with allocated duties. The claimants refused to report to the stations allocated, being selective about the jobs they wanted. The court held the respondent could not be forced to accept employees who refused to work, and as of 28th December 2011 the claimants had no job and no right to claim particular positions.
Role of a shop steward in litigation and where he is the aggrieved party
A shop steward dismissed from employment is an ordinary litigant; where the shop steward is himself the subject of grievance he must remove himself as representative to avoid conflict of interest and bias.
Relying on section 55 of the Labour Relations Act and Seth Panyako v KUDHEIHA, the court held that James Sande's position as shop steward ended with his dismissal; representation of claimants was by virtue of Rule 9 consolidation, not union capacity. A shop steward who is the subject of grievance cannot be his own advocate and representative; he should have asked the union or another representative to act, failing which impartiality and independence are lost.
The respondent's counter-claim for salaries paid while claimants were away
The counter-claim fails; the claimants remained lawfully employed until 28th December 2011 and were entitled to their salaries for that period.
From 3rd November 2011 the claimants were on lawful compulsory leave, and from 8th to 28th December 2011 the respondent was engaged in efforts to have them resume duty. Termination letters were only issued on 28th December 2011. Until then the claimants were employees entitled to salaries, which cannot be clawed back.
Legal principles established
#- An employer has the prerogative to transfer employees, provided the change to the employment contract is communicated in writing and is reasonable and capable of being performed by the employee.
- A shop steward who is himself the subject of a grievance must step aside and allow another union representative to act, to avoid a conflict of interests.
- In a termination claim the employer must prove the reasons for termination, and where it fails, the termination is deemed unfair under section 45 of the Employment Act.
Court orders
#- 1.Terminal dues lawfully owed to James Sande and Maria Njeri as at 28th December 2011 to be computed and paid within 14 days
- 2.Service pay for years worked to be computed and paid as directed
- 3.Claims by the claimants dismissed in their entirety save for the terminal dues to James Sande and Maria Njeri
- 4.Counter-claim by the respondent dismissed
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court; Industrial Court (Procedure) Rules Rule 9 (consolidation) invoked by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Sande Amuyeka & 6 others v Super Foam Limited [2015] KEELRC 799 (KLR)", Case Analysis (2015). Cause No. 511 of 2013 (consolidated with Causes Nos. 512, 513, 514, 515, 516 and 517 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/799/eng@2015-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.