Esther Chepkorir Rono v Egerton University [2019] KEELRC 374 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer cannot force 'early retirement' to avoid paying redundancy benefits during a restructuring.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated from her employment
Yes - the purported early retirement under clause 12 of the terms of service was in substance a redundancy and was effected unfairly, contrary to sections 40 and 45 of the Employment Act, 2007
The respondent retired the claimant on 'attaining early retirement age' after restructuring the finance and audit departments. The court held that a restructuring is an operational requirement amounting to redundancy under section 40 of the Employment Act. Clause 12's optional retirement at 50 was elective and available only to the employee, not the employer. By invoking clause 12, the respondent denied the claimant the redundancy benefits under clause 14, rendering the termination unfair under section 45(2).
Whether there were constitutional violations (discrimination and dignity)
No constitutional violation established; the restructuring affecting the audit department where the claimant served was not discriminatory
The claimant alleged discrimination under Articles 27 and 28 of the Constitution because colleagues were redeployed while she was retired. The court found the respondent was faced with a restructuring and the internal audit department, where the claimant was chief internal auditor, was laid off with other employees redeployed. Acting within section 40 of the Employment Act and clause 14 of the terms of service was not discriminatory against the claimant.
Whether general damages and damages for unfair termination are payable
No general damages awarded; instead the claimant was awarded severance pay of 13 months' gross pay as redundancy benefits under clause 14 and section 40
Having worked from 21st October 1998 to 5th July 2012, a period of 13 full years, the claimant was entitled under clause 14 of the terms of service to severance pay of one month's pay per completed year of service, calculated at her gross pay of Ksh.188,620.00, totalling Ksh.2,452,060.00. The generous notice pay already received sufficed for notice due under the redundancy clause.
Legal principles established
#- Where there is reorganisation, rearrangement, reshuffle or lay off of employees to ensure operational efficacy and sustainability, this in law is treated as a redundancy regardless of the name the employer gives it
- An optional retirement clause is elective and available only to the employee; the employer cannot apply it at will, and to do so is an unfair labour practice and an unfair termination contrary to sections 40 and 45 of the Employment Act
- Under section 45(2) of the Employment Act, termination is unfair if the employer fails to prove a valid and fair reason and that a fair procedure was followed
Court orders
#- 1.Severance pay awarded at Ksh.2,452,060.00 (13 months' pay at Ksh.188,620.00 gross pay)
- 2.Claimant awarded costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Chepkorir Rono v Egerton University [2019] KEELRC 374 (KLR)", Case Analysis (2019). Cause No. 80 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/374/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.