Helga Ohany v Germany School Society [2017] KEELRC 1919 (KLR)
The bottom line
#Kenya's Employment Court ruled the German School Nairobi's redundancy of its Chief Accountant was unfair, awarding her over Kshs. 5.6 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Limitation of claims for benefits accruing during employment
The back pay claim is not time barred; it is a continuing injury claimable within 12 months of cessation of employment
The Court adopted Rika J's reasoning in Ashioya v Akshar Team Security that employment benefits vest over time and obligations attach over time, and that at termination all benefits should be accorded to the employee. The contract ceased on 11th July 2014 and the claim filed on 11/12/2014 was within time.
Jurisdiction over pension scheme disputes
The ELRC has jurisdiction over refusal to admit an employee to a pension scheme as an unfair labour practice arising from the employment relationship
The Court held that retirement benefit is a right arising out of an employment relationship, and that Section 46 of the Retirement Benefits Act cannot override Article 162(2) of the Constitution which confers jurisdiction over all matters relating to employment and labour relations.
Privilege of Exhibit 41
The fee note is a privileged advocate-client document and cannot be relied upon by the Claimant
Relying on Section 134 of the Evidence Act, the Court found the fee note from the Respondent's advocates to the Respondent was a communication made in the course of professional employment protected by advocate-client privilege, with no evidence of the client's express consent to disclosure.
Admissibility of uncertified translations
The German-to-English translations are admitted; embassy certification is not mandatory and no prejudice was shown
The Court applied Sections 64 and 68 of the Evidence Act on secondary evidence, found the embassy-certification requirement was a matter of practice rather than law, and noted the Respondents had opportunity to examine the translations and raised no complaint of flaw.
Fairness of the redundancy
The redundancy was unfair and irregular because the notice period was used as forced leave and no consultation took place; the selection criteria under Section 40(1)(c) were not proved
Although a one-month notice dated 12th June 2014 was issued to the employee and labour officer as required by Section 40(1)(b), the employer required the Claimant to proceed on leave during the notice period instead of paying leave off in cash, which was irregular and defeated the consultative purpose of the notice. No criteria for singling out the Claimant were proved.
Severance and service pay
Severance pay at 15 days per year worked was already provided; service pay is not payable because the Claimant was an NSSF member
The redundancy letter offered severance pay conforming to Section 40(1)(g). On service pay, the contract and Code of Conduct made each employee with a local contract automatically an NSSF member, and her payslip confirmed membership, engaging the bar in Section 35(6) of the Employment Act.
Discriminatory exclusion from the pension scheme
The Respondent deliberately excluded the Claimant from the pension scheme; she is entitled to damages of 12 months' salary
The Court found the scheme rules contained nothing preventing the Claimant from joining had she completed the requisite forms, and that the existence of the scheme was never brought to her attention at the time of employment, so she lost employer pension contributions. This amounted to a discriminatory practice compensable by 12 months' salary.
Legal principles established
#- Under Section 90 of the Employment Act, unpaid benefits accruing over the life of an employment relationship constitute a continuing injury claimable within 12 months after cessation of employment
- A redundancy notice requiring the employee to proceed on leave during the notice period defeats the purpose of the notice and vitiates consultation, rendering the redundancy unfair
- Advocate-client correspondence is privileged and may not be relied upon by an opposing party without the client's express consent
- Uncertified translations of foreign documents are admissible where the opposing party suffers no prejudice and certification by an Embassy is not a mandatory legal requirement
Court orders
#- 1.Declaration that the redundancy of the Claimant was unfair and irregular
- 2.Award of Kshs. 2,125,728 being 12 months' salary as damages for discriminatory exclusion from the pension scheme
- 3.Award of Kshs. 2,125,728 being 12 months' salary as damages for unlawful redundancy
- 4.Award of Kshs. 1,422,255 as back pay for discrepancies in pay between the Claimant and other employees
- 5.Total award of Kshs. 5,673,711 plus the amounts already paid to the Claimant in redundancy dues
- 6.Costs to the Claimant
- 7.Issuance of a Certificate of Service to the Claimant
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Industrial Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Helga Ohany v Germany School Society [2017] KEELRC 1919 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1919/eng@2017-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.