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ELRCPartially AllowedCause No. 315 of 2010· [2016] KEELRC 1743 (KLR)

Kenya Union Of Journalists And Allied Workers v Nation Media Group Limited [2016] KEELRC 1743 (KLR)

Employment and Labour Relations Court of Kenya
20 January 2016
3,193 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 Nation Media Group unfairly retired an employee under 're-organisation' but only awarded him unpaid leave dues.

What this practically means

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Executive summary

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The Kenya Union of Journalists and Allied Workers claimed on behalf of grievant William Onywera Osago, a translator/reporter employed by Nation Media Group Limited from 1984 until 2008, that his early retirement was unlawful, that he was victimised on account of his HIV status, and that the CBA was violated. The Claimant sought reinstatement or damages of up to 12 months' salary, salary and anniversary increments, 7 years' salary to retirement age, unpaid leave, leave travelling allowance, service pay and costs. The Respondent defended the termination as a consensual early retirement under a re-organisation, with all terminal dues paid and acknowledged, and did not call any evidence at trial. The Court held that early retirement premised on re-organisation is a redundancy under section 40 of the Employment Act, and the employer bore the burden under sections 43 and 47 to prove the reasons for and extent of the re-organisation. The Respondent's failure to call evidence meant the burden was not discharged, rendering the termination unfair under section 45. However, the HIV victimisation claim failed for want of evidence, the Grievant having worked 12 years after his 1996 diagnosis and not substantiating that his status motivated the retirement. On remedies, the Court found the terminal dues paid (3 months' notice and 30 days per year severance) exceeded both the statutory minimum and the CBA rate, so no further damages were due. Only the unchallenged 20 days' leave (Kshs.125,232.00) and leave travelling allowance (Kshs.22,863.00) were awarded, with each party bearing their own costs.

Key legal issues

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01

Fairness of the early retirement/redundancy termination

Holding

The termination was unfair because the Respondent did not discharge the burden of proving the reasons for and extent of the re-organisation, having opted not to call evidence.

Reasoning

Early retirement based on re-organisation is a form of redundancy under section 40 of the Employment Act. Where an employee challenges the reason cited, the employer must prove under sections 43 and 47 that there was a business need to re-organise and give the section 40(1)(a) notice of reasons and extent not less than a month before termination. The Respondent called no evidence, so the Court could not be taken through the justification, rendering the termination unfair under section 45.

p. 4
02

Victimisation on grounds of HIV status

Holding

No evidence supported the claim of victimisation; the Grievant knew his status in 1996, remained employed 12 years, and did not show the supervisor's conversation tied the retirement to his status.

Reasoning

Although sections 5 and 47 of the Employment Act outlaw HIV-based victimisation, a claimant must go beyond mere citation of status and set out clearly how the status became the subject of concern and how it motivated the treatment. The Grievant's cross-examination confirmed the status was not discussed with his supervisor at the early retirement meeting, so no firm finding of discrimination could be made.

p. 5
03

Remedies where terminal dues exceed statutory and CBA minima

Holding

No general damages for unfair termination were awarded because notice pay and severance paid exceeded the Employment Act minimum and the CBA rate; only unchallenged leave dues and travel allowance were awarded.

Reasoning

The Grievant received 3 months' notice pay against the CBA's 30 days, and severance at 30 days per year against the CBA's 15 days per year. Awarding further compensation would penalise the Respondent for exceeding the legal minimum. However, the 20 days' leave (Kshs.125,232.00) was not challenged and leave travelling allowance (Kshs.22,863.00) was not evidenced as paid, so those were awarded.

p. 5

Legal principles established

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  • An employer asserting redundancy/re-organisation bears the burden under sections 43 and 47 of the Employment Act to prove the reasons for and extent of the re-organisation, and mere evidence of re-organisation is insufficient.
  • Without the employer discharging the burden of justifying the re-organisation, a termination based on it is unfair under section 45 of the Employment Act.
  • A redundancy cannot affect only one employee; the process requirements under section 40 must be justified and followed.
  • A claim of victimisation based on HIV status must be specifically pleaded and proved with evidence of how the status motivated the treatment; it cannot be glossed over or treated casually.

Court orders

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  1. 1.Judgment entered for the Claimant for Kshs.125,232.00 for leave due
  2. 2.Award of Kshs.22,863.00 for travel allowances
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007section 2
  • Employment Act, 2007section 5
  • Employment Act, 2007section 31(b)
  • Employment Act, 2007section 40
  • Employment Act, 2007section 40(1)(a)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 46(g)
  • Employment Act, 2007section 47
  • HIV/AIDS Prevention and Control Actsection 31(b)

Cases cited (2)

  • AAWU Vs. Kenya Airways Limited
    Cause No. 1616 of 2013
  • Jane Khalachi versus Oxford University Press E.A. Ltd
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes reported under the Labour Relations Act; dispute reported to the Minister under the (then applicable) labour dispute resolution framework

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, "Kenya Union Of Journalists And Allied Workers v Nation Media Group Limited [2016] KEELRC 1743 (KLR)", Case Analysis (2016). Cause No. 315 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1743/eng@2016-01-20

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