Abdulrahman Omar v Kenya Red Cross [2018] KEELRC 2253 (KLR)
The bottom line
#A Kenyan court ruled that refusing to renew an injured worker's contract was unfair dismissal, awarding him 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether non-renewal of a fixed term contract was unfair termination
The non-renewal was in substance a termination initiated by the employer, based on the improper motive of the Claimant's work injury and diminished productivity, and was therefore unfair.
The contract had been renewed without fail from 2008. The Respondent did not prove that renewal depended on donor funding or that any project or UNHCR funding ended. The employer could not offer light duty or transfer without a pay cut, and the only plausible reason for non-renewal was the Claimant's impairment through work injury. Following the Frenchon UNAT decision, non-renewal on such grounds is separation initiated by the employer and unfair.
Whether severance or service pay was payable
Severance pay is only available in redundancy under Section 40 of the Employment Act, and the Claimant was ineligible for service pay under Section 35(6) because he contributed to the N.S.S.F.
The Claimant's position was never declared redundant, so Section 40 severance pay does not arise. If the claim were read as service pay, Section 35(6) excludes employees who are active N.S.S.F. contributors, as the pay slip showed. The claim for Kshs. 140,000 was therefore refused.
Legal principles established
#- An employer's discretion not to renew a fixed term contract can be challenged where the decision is based on improper motive, including where non-renewal is a response to service-incurred injury
- Non-renewal of a fixed term contract informed by the employee's work injury and diminished productivity constitutes termination by the employer and is unfair
Court orders
#- 1.Declaration that the Claimant's contract of employment was terminated unfairly
- 2.Respondent to pay the Claimant the equivalent of 12 months' salary in compensation for unfair termination at Kshs. 480,000
- 3.Costs to the Claimant
- 4.Interest at 14% per annum from the date of Judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulrahman Omar v Kenya Red Cross [2018] KEELRC 2253 (KLR)", Case Analysis (2018). Cause No 30 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2253/eng@2018-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.