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ELRCDismissedCause No. 257 of 2012 (Memorandum of Claim dated 21st September 2012)· [2015] KEELRC 1021 (KLR)

Igbal Parvez v Simba Colt Motors Limited [2015] KEELRC 1021 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
5 June 2015
MNMathews Nderi Nduma
2,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that being paid less than a colleague isn't discrimination unless you prove the difference was actually because of race.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Field Service Manager from November 1997, claimed that on the relocation of the then General Manager of the Power Systems Division, a white expatriate named John Jutson, he assumed the General Manager's duties and responsibilities for two and a half years without confirmation to that position, without an acting allowance and without remuneration comparable to that paid to his predecessor. He sued for damages for unlawful discrimination at the workplace based on race (he being of Asian origin, his predecessor a white expatriate) contrary to Sections 5(3)(a) and 5(4) of the Employment Act, 2007, and for an acting allowance deficit of Kshs.500,000 multiplied by 35 months, plus costs. The Respondent denied the discrimination claim, asserting the Claimant rose only to Manager, Power Systems Division - a diminished position following business decline and loss of a supply contract - that Jutson held far higher qualifications and experience, and that an independent Deloitte job evaluation graded the divisional headship as middle management. The court framed two issues: whether the Claimant was discriminated against on the basis of race, and if so, the remedy. Adopting the ILO Convention No. 111 definition of discrimination via Article 2(6) of the Constitution, and applying the South African Labour Court decision in Michael Louw v Golden Arrow Bus Services, the court found the Claimant never held the General Manager position, that the differential remuneration rested on qualifications and business needs rather than race, and that no fact of equal work for lesser pay was proved. The suit was dismissed with costs to the Respondent on 5th June 2015.

Key legal issues

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01

Whether the Claimant was discriminated against on the basis of race in remuneration contrary to Sections 5(3)(a) and 5(4) of the Employment Act, 2007

Holding

No. The Claimant failed to prove he held the same position as, or performed work of equal value to, Mr. Jutson, and there was no evidence that race was the reason for any difference in remuneration

Reasoning

The court adopted the ILO Convention No. 111 definition of discrimination, part of Kenyan law via Article 2(6) of the Constitution. On the facts, the Claimant was promoted to Manager, not General Manager; the position was diminished with fewer duties; Jutson had higher qualifications and experience; and there were no indicators that Jutson's better remuneration was because he was white. The differential treatment rested on qualifications and business decline, not race.

p. 4
02

Whether the Claimant proved his particulars of claim on a balance of probabilities

Holding

No. The Claimant failed to prove any of the particulars of claim on a balance of probabilities

Reasoning

The court made express conclusions of fact: the Claimant was promoted only to Manager – Power Systems Division; the allegation of receiving less remuneration than Jutson while holding the same position had no factual basis; and Jutson had far higher, diverse and relevant technical qualifications and experience. Since discrimination required proving the ground (race) was the reason for disparate treatment, and no such proof was adduced, the suit fell to be dismissed with costs.

p. 4

Legal principles established

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  • Discrimination on a particular ground requires that the ground be the reason for the disparate treatment complained of; mere disparate treatment between races is not discrimination on the ground of race
  • The definition of discrimination in ILO Convention No. 111 (1958), ratified by Kenya, forms part of Kenyan municipal law under Article 2(6) of the Constitution of Kenya 2010
  • An employer shall pay employees equal remuneration for work of equal value (Section 5(4), Employment Act, 2007)

Court orders

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  1. 1.The entire suit is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Act, 2007Section 5(3), Section 5(3)(a), Section 5(4)
  • Constitution of Kenya, 2010Article 2(6)

Cases cited (1)

  • Michael Louw V. Golden Arrow Bus Services
    Case No. C.37/97
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 5) and Article 2(6) of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Igbal Parvez v Simba Colt Motors Limited [2015] KEELRC 1021 (KLR)", Case Analysis (2015). Cause No. 257 of 2012 (Memorandum of Claim dated 21st September 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1021/eng@2015-06-05

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