Tibbs Vincent Robert v SGS Kenya Limited [2022] KEELRC 665 (KLR)
The bottom line
#Kenya's Employment Court awarded an ex-employee over Kshs. 36 million after his employer terminated him without giving a reason during what was really a redundancy.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was discriminated against
Discrimination established only in respect of the school fees benefit for the stepchild; other complaints (furniture allowance, housing, secrecy clause, bonus refund, repatriation) not proved discriminatory.
The International Long-term Assignment Policy referred to 'dependent' Children and did not require adoption for parental responsibility. The Claimant supplied marriage and birth certificates, and other employees received the benefit, so he and his family were placed at a disadvantage. Claims on furniture allowance lacked documentary support; the secrecy clause was contractual; the bonus refund was justified under Section 19(1)(e); repatriation was offered but not taken up.
Whether termination was substantively fair
Not substantively fair - no valid reason was given for termination.
The Respondent conceded in its pleadings and evidence that no reason was given for termination. Its witness agreed a termination clause could not be invoked without a reason. The court found the real basis was redundancy, and the Respondent could not rely on the contractual termination clause while diverting focus from the redundancy process.
Whether termination was procedurally fair and severance payable
Not procedurally fair; Section 40 redundancy procedure and severance pay should have applied despite the expatriate policy.
Evidence including the HR Manager's computation of redundancy benefits and the list of employees earmarked for redundancy showed a genuine redundancy situation. The contract was subject to Kenyan law, so Section 40 applied 'full throttle'. The Claimant was not paid severance, not offered an alternative role, and was discriminated against on the basis that he was governed by an unclarified Expatriate Policy.
Whether the discrimination claim was premature
Not premature; denial of the school fees benefit was a continuous violation and it would have been unwise to wait for the notice period to expire.
Notice of redundancy issued in June 2020 and the violation was continuous. The Claimant was a foreigner serving notice, aware his contract was ending, and the Respondent had declined to embrace the redundancy process. Filing while still in employment was justified.
Legal principles established
#- Termination of employment must be supported by valid and fair reasons under Sections 43 and 45 of the Employment Act; a contractual termination clause cannot be invoked without a reason.
- Where the real basis of termination is redundancy, an employer must follow the statutory redundancy procedure in Section 40 of the Employment Act, including payment of severance pay, notwithstanding any expatriate policy.
- Parental responsibility for a stepchild does not require adoption; an employer may not condition a school fees benefit for a stepchild on production of adoption documents.
Court orders
#- 1.Declaration that the Respondent violated the Claimant's statutory and constitutional rights under Section 5 of the Employment Act, and Articles 27[5] and 41 of the Constitution, on discrimination and fair labour practices.
- 2.General damages for the violations awarded at Kshs. 1,200,000.
- 3.Declaration that termination was unfair for want of substantive justification and fair procedure.
- 4.Equivalent of 12 months' salary in compensation for unfair termination awarded at Kshs. 26,353,452.
- 5.Severance pay awarded at Kshs. 7,686,423.
- 6.Annual leave awarded at Kshs. 838,010.
- 7.Total monetary award of Kshs. 36,077,885.
- 8.Costs to the Claimant.
- 9.Interest at court rates from the date of Judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya (Articles 27[5] and 41)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamwega v Wananchi Group Kenya Limited (Employment and Labour Relations Cause 1420 of 2017) [2024] KEELRC 546 (KLR)[2024] KEELRC 546 (KLR)8 Mar 2024
- Njeru v Nampak Kenya Limited (Employment and Labour Relations Cause 501 of 2019) [2023] KEELRC 2434 (KLR)[2023] KEELRC 2434 (KLR)6 Oct 2023
- Kenya Plantation & Agricultural Workers Union v Hygrotech East Africa Ltd (Employment and Labour Relations Cause E004 of 2022) [2023] KEELRC 648 (KLR)[2023] KEELRC 648 (KLR)9 Mar 2023
Cite this brief
#Cite this brief
Caselaw, "Tibbs Vincent Robert v SGS Kenya Limited [2022] KEELRC 665 (KLR)", Case Analysis (2022). Cause No E523 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/665/eng@2022-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.