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ELRCPartially AllowedCause No 646 of 2018· [2018] KEELRC 1315 (KLR)

James Mwanyika Mwaselah v Kenya Airports Authority [2018] KEELRC 1315 (KLR)

Employment and Labour Relations Court
27 July 2018
949 words in judgment
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The bottom line

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Kenya Airports Authority cannot redeploy an employee to a different job title without first consulting them, as the law requires.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi delivered on 27 July 2018 by Radido Stephen J in a cause instituted on 2 May 2018 by a Clerk of Works - Electronics against the Respondent employer. The applicant was transferred to Eldoret Airport in November 2017, and after he filed suit, the Respondent re-designated him from Clerk of Works - Electronics (Grade S5) to Technician, Electrical/Electronics by letter dated 14 May 2018. The applicant moved by motion seeking conservatory orders suspending that letter. The applicant argued that section 10(5) of the Employment Act, 2007 and section K.5 of the Transfer Policy required consultation before re-designation, and that no discussions were held before his transfer. The Respondent contended the transfer was driven by exigencies of duty and that the suit was premature for failure to exhaust internal grievance mechanisms. The Court, applying Giella v Cassman Brown, held that the Respondent had not responded to the assertion that no consultations occurred and had not disputed the re-designation. It found that consultation was necessary under section 10(5), and that unilateral re-designation may amount to an alteration of the contract constituting breach of contract. The Court found a prima facie case for an interdicting order but declined to characterize it as a conservatory order since the case lacked a public interest/public law character. The Court issued an injunction suspending the letter of 14 May 2018 pending the hearing of the Cause, with costs in the Cause.

Key legal issues

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01

Prima facie case for interlocutory injunction against re-designation letter

Holding

The Court found a prima facie case based on the Respondent's failure to consult and its unilateral re-designation of the applicant.

Reasoning

Section K.5 of the Transfer Policy envisaged discussions where transfer is due to exigencies of service, and the Respondent did not respond to the deposition that no consultations were held, nor did it dispute the re-designation. Applying the Giella v Cassman Brown principles, the applicant established a prima facie case warranting an injunction suspending the letter of 14 May 2018.

p. 2
02

Duty to consult before transfer/re-designation

Holding

Consultations were necessary under section 10(5) of the Employment Act, 2007; unilateral re-designation may constitute breach of contract.

Reasoning

The Court relied on section 10(5) of the Employment Act and the authority in James Angawa Atanda v Judicial Service Commission to hold that re-designation may amount to alteration of the contract. The Respondent's failure to consult under the Transfer Policy supported the applicant's claim that the transfer and re-designation were irregular.

p. 2
03

Exhaustion of internal grievance mechanisms

Holding

The Respondent's plea of prematurity did not defeat the application.

Reasoning

The Respondent urged that the applicant had not exhausted internal mechanisms, but the Court did not accept this as a bar; the unresolved consultation requirement and the Respondent's failure to respond to the applicant's depositions meant the application was properly before the Court.

p. 2

Legal principles established

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  • Under section 10(5) of the Employment Act, 2007 an employer must consult an employee before altering or re-designating his terms/designation; unilateral re-designation may amount to an alteration of the contract and breach of contract.
  • Conservatory orders are reserved for matters with a public interest/public law character; an ordinary interlocutory injunction governs private employment disputes.

Court orders

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  1. 1.An order of injunction issued suspending, pending the hearing of the Cause and/or further orders, the contents of the Respondent's letter dated 14 May 2018 (Ref. No. KAA/374532) re-designating and re-deploying the Claimant from job designation CLERK OF WORKS - ELECTRONICS Grade S5 to job designation TECHNICIAN, ELECTRICAL/ELECTRONICS Job Grade S5
  2. 2.Costs in the Cause

Authorities

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Legislation

  • Employment Act, 2007section 10(5)

Cases cited (3)

  • Giella v Cassman Brown & Co
    (1973) EA 338
  • Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High School Mosocho & 2 Ors
    (2014) eKLR
  • James Angawa Atanda & Ors v Judicial Service Commission
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Act, section 12 (implied by the Cause before the Court); not expressly quoted

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, "James Mwanyika Mwaselah v Kenya Airports Authority [2018] KEELRC 1315 (KLR)", Case Analysis (2018). Cause No 646 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1315/eng@2018-07-27

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