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ELRCDismissedPetition filed 13th April 2018 (Cause/Petition No. unspecified in judgment)· [2019] KEELRC 743 (KLR)

Atsyaya v Standard Chartered Bank Kenya Limited; Banking Insurance & Finance Union (Interested Party) (Petition 30 of 2018) [2019] KEELRC 743 (KLR)

Employment and Labour Relations Court
17 September 2019
HWHellen Wasilwa
3,501 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a manager's claim against KCB because he volunteered for redundancy and, as a manager, could not claim union benefits.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent bank since 1979 and promoted to managerial band 8 (M16), petitioned the Employment and Labour Relations Court in April 2018 alleging that his December 2015 redundancy was unfair and that the Respondent discriminated against him on salary, increments and allowances because of his membership of the Banking Insurance and Finance Union, despite being a manager. He sought declarations of discrimination and unfair termination, constitutional damages of Kshs. 10,000,000, and payment of benefits and special damages including acting allowance, owner occupier allowance and pension contributions. The Respondent maintained that the Petitioner, being in management, was not covered by the recognition agreement or CBA, that his salary was commensurate with his grade, that allowances claimed predated 1994 and were time barred, and that he voluntarily elected to exit through the enhanced redundancy package, receiving Kshs. 6,282,870.71 in full and final settlement. The court framed four issues: unfair redundancy, discrimination, infringement of constitutional rights, and entitlement to remedies. It held that the Petitioner had himself applied to be considered for the redundancy package, was duly notified and paid, so unfair redundancy did not arise; that as a non-unionisable manager he could not claim CBA benefits, applying the Court of Appeal's decision in Kenya Chemical & Allied Workers Union v Bamburi Cement; and that claims predating 1994 were time barred. Finding no discrimination and no violation of constitutional rights, the court dismissed the Petition with no order as to costs.

Key legal issues

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01

Unfair redundancy

Holding

The Petitioner was not unfairly declared redundant; he applied in writing to be considered for the redundancy package, was notified, and received and acknowledged Kshs. 6,282,870.71 as full and final settlement

Reasoning

The Petitioner wrote on 24th November 2015 asking to be considered for the restructuring package. He was issued a redundancy notice the next day, a reminder letter on 18th December 2015, and he received and acknowledged the package on 28th December 2015. Having elected redundancy, section 40 notification requirements did not arise against him.

p. 7
02

Discrimination in salary and emoluments

Holding

No discrimination established; the Petitioner was a manager, non-unionisable, and could not benefit from CBA terms negotiated for unionisable employees

Reasoning

The court applied the Court of Appeal decision in Kenya Chemical & Allied Workers Union v Bamburi Cement, holding that employment is an individual contractual relationship and only persons privy to a CBA can benefit from it. The Petitioner, as a manager outside the recognition agreement, could not claim parity with unionisable staff.

p. 7
03

Time-barred claims for allowances

Holding

Claims for acting allowance and owner occupier allowance dating before 1994 were time barred

Reasoning

The Respondent demonstrated that acting allowances had been paid per the Petitioner's payslips, and the owner occupier allowance was only available to eligible unionisable employees under the CBA. In any event, the claims related to periods before 1994 and were clearly caught by limitation.

p. 7
04

Alleged constitutional violations (Articles 27, 28, 29, 40, 41)

Holding

No constitutional rights of the Petitioner were infringed by the Respondent

Reasoning

Having found no discrimination and no unfair redundancy, the court found no breach of rights to dignity, fair labour practices, remuneration or freedom of association. The Petitioner failed to prove he was treated differently from persons of similar managerial grade.

p. 7

Legal principles established

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  • An employee who is not party to or covered by a CBA cannot claim benefits under it; discrimination arises where an employee in the same category is treated differently
  • An employee who voluntarily elects to exit employment through a redundancy package cannot later claim unfair redundancy

Court orders

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  1. 1.The Petition dated 13th April 2018 is dismissed in its entirety
  2. 2.No order of costs - each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 23, 23(1), 27(1),(2),(4), 28, 29, 29(2)(d), 29(f), 30, 31(c),(d), 35(1)(a),(b), 36, 40, 41(1),(2)(a),(b),(c), 43(1)(e), 47(1), 48, 50
  • Employment ActSection 40(1)(a),(b), Section 43, Section 80, Section 90

Cases cited (5)

  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013] eKLR
  • RM & another v Attorney General
    (2008) 1 KLR 574
  • Kenya Chemical and Allied Workers union v Bamburi Cement Limited
    [2017] eKLR
  • Coastal Bottlers v Kimathi Mithika
    [2018] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 22, 23 and 41; employment and labour relations jurisdiction of the ELRC)

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, "Atsyaya v Standard Chartered Bank Kenya Limited; Banking Insurance & Finance Union (Interested Party) (Petition 30 of 2018) [2019] KEELRC 743 (KLR)", Case Analysis (2019). Petition filed 13th April 2018 (Cause/Petition No. unspecified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/743/eng@2019-09-17

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