Hayson v Dhl Supply Chain Kenya Ltd & another (Cause E417 of 2020) [2024] KEELRC 2188 (KLR)
The bottom line
#A Kenyan court awarded a former DHL executive 12 months' salary because his employer left him stranded after an overseas secondment ended without a job or proper termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was unfairly terminated.
- 2.Whether the Claimant's rights of legitimate expectation and fair labour rights were infringed by the Respondents.
- 3.Whether the Claimant is entitled to reliefs sought.
Key legal issues
#Whether the Claimant was unfairly terminated
The Claimant was constructively dismissed and unfairly terminated; his Kenyan contract was never terminated when he went on the midterm assignment
The court found the claimant remained an employee of the 1st Respondent while on assignment in Oman. His Kenyan contract was never terminated, no terminal dues were paid, and the Respondents failed to offer a comparable position or process termination under Kenyan law upon expiry of the assignment. Reliance on alleged declined job offers was unsupported by documents. This conduct amounted to constructive dismissal and unfair termination.
Whether legitimate expectation and fair labour rights were infringed
Yes; the Claimant's legitimate expectation of a comparable position or lawful termination with dues was breached, constituting unfair labour practices under Article 41
Under the Midterm Assignment policy the Claimant was entitled on ending the Oman assignment to return to Kenya and be given a similar or comparable position, or have his contract lawfully terminated with dues. The Respondents acknowledged his relocation distress by email of 7th October 2019 but refused relocation costs and failed to maintain his work permit. This breached legitimate expectation and amounted to unfair labour practice under Article 41.
Whether the Claimant is entitled to the reliefs sought
Partially; maximum 12 months' compensation under section 49(4) of the Employment Act awarded, with certificate of service and costs; reinstatement, special damages and prospective salary refused
Reinstatement was time-barred after more than two years. Special damages failed as duplicative of the Oman award. Prospective salary and benefits failed because employment contracts can end for reasons other than termination, and section 49 of the Employment Act governs damages. The Claimant's over 20 years of service and unlawful termination justified the maximum 12 months' compensation.
Legal principles established
#- Secondment does not terminate the employee's underlying contract; on termination of a midterm assignment the home-country employer must offer a comparable position or lawfully terminate with dues
- An employer who has no suitable position for a returning secondee must terminate in accordance with employment laws; failure to do so amounts to constructive dismissal
Court orders
#- 1.Award of 12 months' salary as compensation for unfair termination of Kshs 22,222,812/=
- 2.Certificate of service to be issued if not already issued
- 3.Costs of the suit to the Claimant
- 4.Award subject to taxes and statutory deductions where applicable, with interest from date of judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 of the Constitution; Employment and Labour Relations Court jurisdiction (preliminary objection on jurisdiction previously ruled upon by this Court)
Relief refused
#Reinstatement in employment with full benefits
More than two years had elapsed since separation; reinstatement not tenable
Special damages of Kshs 12,000,000/=
The same items had been awarded in the Oman court case
Loss of salary for the remaining employment period (Kshs 389,968,893/=) and employment benefits for the remaining employment period (Kshs 164,673,202/=)
Damages to retirement date are not payable under section 49 of the Employment Act
Costs
Costs of the suit to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances the Court takes the view that the claimant was constructively dismissed and in a manner that amounted to unfair termination.
This amounted to unfair labour practices under Article 41 of the Constitution and breach of the Claimant's constitutional rights.
The Claimant had legitimate expectations that once he comes back to his country he would continue working with the Respondents and if there was no suitable position that his terminal dues would be paid and his contract be properly terminated as per Kenyan laws.
a. 12months' salary as compensation for unfair termination……Kshs 22,222,812/= b. Certificate of service if not issued. c. Costs of the suit
Issues in the judgment
#Judgment contains internal inconsistency on terminal dues: at one point it states the Claimant was never paid terminal dues under his Kenyan contract, while RW1 testified terminal benefits were paid per payslip and the payslip payment is characterised as bonus
The submissions record a typographical date inconsistency regarding the global announcement (1st April 2025)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayson v Dhl Supply Chain Kenya Ltd & another (Cause E417 of 2020) [2024] KEELRC 2188 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi), judgment delivered 6th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2188/eng@2024-09-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.