Why disabled staff have an upper hand over employers

A disabled person cannot be laid off, even when there are good reasons to do so, and the right procedure has been followed, a judge ruled last week.

This judgement could cause far-reaching consequences in the labour market.

Employment and Labour Relations Court Judge James Rika ruled that the disabled are a special group of people, “who should not have their employment terminated”.

Mr Justice Rika noted that physically disabled persons are not ordinary employees. Their terms and conditions of employment, the judge added, are fully addressed through the provisions of the Employment Act 2007.

“They are a special category of our society. In determining the issues raised by this dispute, the court has an obligation to consider other legal instruments that are meant to regulate the lives of physically challenged persons. Justifiability of the Association for the Physically Disabled of Kenya (APDK) decision would have to be weighed against the demands of these instruments,” Judge Rika said.

COUNTERPRODUCTIVE RULING

The Federation of Kenya Employers (FKE), however, says the ruling could be counterproductive as it could work against the very group the judge is trying to protect.

“The direct implication to the employer and the public at large is that once you get into an employment relationship with a physically disabled person, you cannot get out of the same. Technically, the only means such an employment relationship can end is if such an employee resigns,” said FKE’s executive legal counsel Raimond  Molenje.

The Central Organisation of Trade Unions (Cotu) Secretary-General Francis Atwoli supports the ruling.

Mr Atwoli said employers should be considerate by giving the disabled persons priority since their rights are also protected in the Constitution.

The ruling was made in a case filed by the Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers (Kudheiha) against the Association for the Physically Disabled of Kenya, which runs the Mombasa-based Bombolulu Cultural and Workshop Centre. The association had terminated employment contracts of 24 disabled persons.

The employer said it met all the legal, procedural and “substantive requirements” in terminating the contracts. The association notified Kudheiha,  the Labour office and Federation of Kenya Employers, Mombasa arm, about the redundancies.

The employer said in laying off the workers, it did not breach the Collective Bargaining Agreement (CBA), the Persons with Disabilities Act and the Constitution. The workers also received individual notices on September 27, 2012.

Mr Justice Rika said in his ruling that the financial statement of APDK “adequately captures the poor health” of the organisation’s finances, right from the year 2007.

GENUINE ECONOMIC PROBLEM

“Electoral violence in the wake of the disputed presidential ballot in 2007, and the international economic crisis of 2009, demonstrably, weakened APDK’s financial position. Its international customers dwindled, straining revenue streams,” Judge Rika said in his judgment delivered on March 23.

The judge agreed that faced with these constraints, APDK could not sustain the 24 employees.

“The existence of a genuine economic problem, requiring APDK to reorganise its business cannot be gainsaid,” he noted.

The situation was compounded by the lack of support from the government, which APDK had requested at the time.

“The communication by APDK to the government succinctly reveals the persistent financial problems the organisation has over the years encountered in empowering the physically disabled, and the attempts made at reversing the situation. It supports evidence establishing the existence of a genuine redundancy situation,” judge Rika said.

Valid ground

“On the surface of it, APDK had a substantively valid ground in terminating the grievants’ contract of employment.”

He, however, said Kenya signed the United Nations Convention on the Rights of Persons with Disabilities on March 30, 2007, and ratified the Convention on May 19, 2008. The Convention is part of the laws of Kenya, under Article 2(6) of the Constitution.

“The state parties under the convention recognise the right of persons with disabilities to work. State parties have the obligation to safeguard and promote the realisation of the right to work of persons with disabilities,” the ruling notes.

The affected employees had been with the company for a number of years working as woodcarvers, jewellery makers and cleaners. However, due to continuous dismal performance of tourism in Mombasa, the employer sent them home.

APDK runs many service delivery and rehabilitation centres including Port Reitz Hospital and a furniture business at Likono, in Mombasa.

Aggrieved workers

The aggrieved workers had filed a case against APDK saying the decision to terminate their contracts went against the parties’ agreements, the Persons with Disability Act and the Constitution.

They wanted the court to compel APDK to withdraw all the letters  terminating their employment.

The judge, however, appreciated that all the procedural requirements under Section 40 of the Employment Act 2007, and as adopted in the parties’ CBA, were met.

The complainants were issued notices of redundancy on September 27, 2012, to take effect at the end of that year, in accordance with the CBA.

DECLARED REDUDANT

Their trade union was also notified of the action, in accordance with the CBA and the law.

The court also appreciated that APDK has in place a laudable programme for training its departing employees on how to run a business.

“In terms of fairness, APDK seems to have acted in strict adherence to the CBA and the law,” said Mr Justice Rika.

The employer had told the court that it had suffered a steady decline in business since 2007. Consequently, its financial reserves went down from Sh19.7 million in 2007 to Sh10.4 million in 2011. The employer had predicted that its reserve would climb down to Sh3 million in 2012, at the time the job termination decision was made.

Bombolulu Cultural and Workshop Centre operates as a business entity, selling its products locally and abroad. Proceeds from the sale of the products are used to pay  salaries.

In 2007, the business was affected by the post-election violence. Tourists could not visit the premises and buy its products. From 2009, the business also suffered the adverse effects of the international economic crisis.

“Most of our overseas customers are drawn from the Fair Trade International Affirmative Group. Forty seven such customers closed down, leaving us with paltry 10 customers from the overseas,” the association told the court.

APDK made several requests to the national government for funding but it was not successful. The business was therefore compelled to restructure, rendering the positions held by the 24 physically disabled employees redundant.

This was the second time the organisation was  declaring redundancies, having done so initially in 2011.

“We sought for funds from the National Development Fund for Persons with Disabilities but the government advised us that it does not support payment of salaries. The then Minister for Gender and Social Services offered us no assistance at all,” APDK told the court.

The centre started engaging casual employees after the 24 workers left. The casual employees, who were also physically disabled, were  hired whenever the employer had sufficient orders for products.

SPECIAL CLASS

“Our current financial position is worse than it was at the time redundancies were declared. It is impossible to reabsorb the grievants. Reinstatement is not workable,” APDK said.

Though the government was not party to the proceedings, the court recommended the State releases to APDK a subsidy of Sh5 million annually, from the National Development Fund for Persons with Disabilities.

The court finally made a ruling noting that APDK’s decision of terminating the employees’ contracts was made within the law and the CBA concluded between the parties, and was therefore legally sound,” the judge said.

“The grievants are, however, a special class of employees requiring the protection of the court, and are therefore reinstated to their jobs, without loss of salaries, seniority, privileges and other benefits.”

He ordered that any terminal benefits, which may have been received by 24 employees, be offset from their salaries that have accrued from January, 2013, and that the parties to communicate the court’s decision to the government.

The complainants were also directed to report to their former work stations at 8am, on June 1, this year.

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HIGHLIGHTS

The disabled vs. employer legal tussle

•  In a case pitting 24 physically disabled workers against their employer, the Association for the Physically Disabled of Kenya (APDK), which runs Mombasa-based Bombolulu Cultural and Workshop Centre, industrial court judge James Rika said the financial statement exhibited by APDK captures the poor health of its finances.

•  The judge noted that APDK could not sustain the 24 workers. He also appreciated that the procedural requirements under Section 40 of the Employment Act 2007, and as adopted in the parties’ Collective Bargaining Agreement, were honoured in sending the workers home.

•  The court further lauded APDK’s programme for training its departing workers on how to run a business after leaving job.

•  But, the judge however observed: “The grievants are, however, a special class or employees requiring the protection of the court, and are therefore reinstated to their jobs, without loss of salaries, seniority, privileges and other benefits,” Mr Justice Rika noted while directing the 24 workers to report to their former work stations on June 1.