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ELRCDismissedCause No 626 of 2013· [2020] KEELRC 1903 (KLR)

James Heather Hayes v African Medical and Research Foundation (AMREF) [2020] KEELRC 1903 (KLR)

Employment and Labour Relations Court at Nairobi
13 March 2020
ANAbuodha Jorum NelsonBOByram Ongaya
3,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that retiring an employee at 65 is not unfair termination, even if the retirement age was never spelled out in his contract.

What this practically means

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Executive summary

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The claimant, employed by AMREF since 1970 and rising to grade 7 (Senior Management), was issued a one-year service agreement on 1st November 2010 in place of the four-year renewable contracts associated with his grade under the HR Policy and Procedures Manual. He alleged he signed it in reliance on a representation that he would be seconded to a new sister company, AMREF Flying Doctors. In 2011 the respondent introduced a retirement age of 65 by clause 9.2.2 of its HR Policy, and on 27th October 2011 the claimant's contract was extended for eight months to align with his attainment of 65 years on 21st June 2012, whereupon his employment ended by retirement. The claimant sued, contending the one-year contract breached clause 1.5.1 of the manual and that the retirement age had been imposed without notice and applied retrospectively. The respondent maintained the contract was freely accepted, the manual's language was not mandatory, and the claimant was aware of retirement provisions, being a provident fund member who drew his dues. The court framed four issues and held that the word 'will' in clause 1.5.1 was permissive rather than mandatory, so the one-year contract was valid; that the claimant was taken to know of a retirement age given the HR Manual governed the relationship from 1983 to 2010 and contained one; and that his employment ended on account of retirement, not unfair termination. The claim was dismissed, with each party bearing their own costs in view of the claimant's long service.

Key legal issues

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01

Validity of the one-year contract issued to a grade 7 employee

Holding

The use of 'will' in clause 1.5.1 made the four-year contract entitlement permissive; the one-year contract was valid, particularly as the claimant was about to retire

Reasoning

The court compared dictionary definitions of 'will' and 'shall', concluding 'will' is permissive and 'shall' mandatory. Clause 1.5.1 therefore did not absolutely bar a shorter contract for grade 7 staff. Offering a one-year contract was permissible where reasonable circumstances, including imminent retirement, permitted it.

p. 4
02

Whether the claimant knew of the retirement age of 65

Holding

The claimant was taken to have known of a retirement age because the HR Policy Manual, the operative document between 1983 and 2010, contained one, and he was a provident fund member

Reasoning

Between 1983 and 2010 there was no written contract and the HR Policy Manual governed the relationship, and it contained a retirement age. The claimant was a member and contributor to the provident fund whose handbook fixed a normal retirement date, and he drew his dues on retirement, so he could not credibly deny awareness of retirement.

p. 4
03

Whether retirement at 65 amounted to unfair termination

Holding

Termination was on account of retirement, not unfair termination

Reasoning

The court held retirement is an essential feature of any employment relationship and its absence from the contract or lack of specific notice to the claimant was immaterial. The claimant's employment ended because he attained the set retirement age of 65, so no finding of unfair termination could be made and the claim failed.

p. 4

Legal principles established

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  • The word 'will' in an HR manual clause is permissive rather than mandatory, so a grade 7 employee could lawfully be offered a contract shorter than four years
  • No employment is perpetual; retirement is an essential moment in an employment contract even where not specifically mentioned in the contract or brought to the employee's attention

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution (employment dispute over termination/retirement)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "James Heather Hayes v African Medical and Research Foundation (AMREF) [2020] KEELRC 1903 (KLR)", Case Analysis (2020). Cause No 626 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1903/eng@2020-03-13

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