Employers fined heavily for ignoring labour laws

Mr Fredrick Were recently walked to the Industrial Court a pauper, but left the place Sh600,000 richer.

He had gone to court to challenge his sacking, which he had deemed unlawful. MK Jeffery’s Hauliers, his employer, failed to enter appearance or file a defence. That made the case much easier in favour of Mr Were, who had tabled a strong argument.

Mr Were had worked at the company for four years as a truck driver and later as a supervisor earning Sh30,000 a month. On May 16, 2012 he was on duty on a trip when he received a call from the head office informing him that he had been fired. There had been no prior warning or notice.

“The days when employers treated their employees with disrespect are gone with the enactment of the Employment Act, 2007,” warned Industrial Court Judge Monica Mbaru when delivering her judgement two weeks ago on June 13.

In particular, the judge pointed out that the termination of Mr Were over the phone without explanation and thereafter being denied audience was in bad taste.

“Reasons for termination were not given or proved by the employer as envisaged under Section 43 of the Employment Act. The termination was therefore unfair,” the judge concluded and directed MK Jeffery’s Hauliers to pay Mr Were Sh606,000 to cover various claims including unpaid days, pay in lieu of notice, leave days for four years, house allowances due, and a compensation for unfair termination.

Mr Were is just but one of the many individuals to be recently awarded compensation by the Industrial Court for failure by their employers to respect labour laws, and in some instances, court orders.

The cases are a signal that the court won’t tolerate labour malpractices.

On February 25, 2013, another Industrial Court Judge Joram Abuodha, awarded Ms Grace Kazungu Sh14,043,602 and Darlington Kemoni Sh8,545,433 as compensation for wrongful retirement and discrimination by their employer, the National Social Security Fund (NSSF).

And now, 732 employees are seeking a total of Sh526,326,540 from their former employer, Kenya Bus Service Limited, being unpaid wages for the period they had been sent on compulsory leave since March 2005.

An award had been granted to the employees on September 6, 2007 by another Industrial Court Judge Paul Kosgei, who had directed that all the unpaid dues be cleared. Failure by the bus company to honour the order has seen the figure accumulate to the amount presently demanded.

The court had argued that the company had the option to terminate the employees’ services either through redundancy or early retirement, but it had opted to send them on unpaid leave to avoid paying terminal benefits.

It is the company’s failure to comply with the initial court order that prompted the Transport and Allied Worker Union (TAWU) to return to court on April 29 this year, seeking an enforcement of the award.

“If the court understands the claimants correctly, the 732 employees are technically still on compulsory leave. Kenya Bus Service Limited did not take any steps to terminate their contracts or to pay the sums granted to the employees by the court soon after the award was read,” said Mr Justice James Rika in his ruling on June 7, 2013.

With that, he allowed TAWU to proceed with pushing for the execution of the sum of Sh526,326,540 against Kenya Bus Service Limited. He even added that the union was at liberty to bring further execution proceedings against the company on any outstanding amount at the end of first proceedings.

And on June 13, Airtel Networks (K) was slapped with an order to pay over Sh26 million to 63 employees whose contracts the Industrial Court found to have been unfairly terminated.

Again, Judge Monica Mbaru directed the company to pay Sh26,431,526 to the employees who had been employed on different dates from 2000 and deployed as customer care service executives based on their individual contracts with the company.

On January 19, 2011 they were informed that a decision had been taken to transfer them to another employer on terms comparable to those under which they were serving. They were moved to Spanco Raps (K) Ltd, a company contracted by Airtel to handle customer care services.

In court, the employees complained that the decisions giving rise to their termination with Airtel were done without being consultated, and that they were not given a chance to seek legal advice.

Through their lawyer, the they further accused Airtel of failing to keep the promise that their terms of employment would not be interfered with while working for Spanco Raps (K) Ltd, and that there would be a window period of two years within which any dissatisfied employee could return to Airtel.

“Unfortunately, the employees who moved to Spanco Raps (K) Ltd lost most of their benefits and their attempts to go back to Airtel was met with hostility, with Airtel claiming that their jobs were no longer available, and that they had become redundant,” argued the lawyer representing the employees.

“For outsourcing or transfer to take effect, the same must involve the affected employees and they must give individual consent, or where unionised, with the representation of the union. This court therefore finds that the termination was procedurally flawed,” declared Judge Mbaru.

Constitutional and human rights lawyer Okweh Achiando explains that these events show that some human resource managers have either failed to take a keen interest in understanding the laws governing employment, or presumed they could get away with unfair labour practices.

“I suggest that the Federation of Kenya Employers takes time to evaluate and educate their members on the various legislations dealing with industrial and labour relations,” says Achiando.

According to him, civic education has played a major role in making employees aware of their rights. “Companies should be warned that as long as they contravene the law, they should not complain about the decisions made by the Industrial Court,” he adds.