Nairobi: Kenya Airways Ltd is not obliged to reinstate its former 447 employees, an appeal court in Nairobi has ruled. The national carrier got reprieve when the judge agreed that it was justified to declare redundancies, having regard to its bad financial performance, and declining profitability over the last five years. Judge Agnes Murgor said: “I set aside the order for reinstatement and instead thereof order that each of the 447 affected employees be paid damages equivalent to six months gross monthly salary for unfair termination of employment.”
But the judge said the redundancy notice issued by KQ was not in compliance with Section (40) (1) (a) of the Employment Act. The former employees will in addition to the three months’ salary in lieu of notice, 20 days severance, be paid for each completed year of service and any other outstanding dues, payable by the appellant net of all statutory deductions. “I find that the Industrial court misdirected itself and unjustifiably ordered the reinstatement of the 447 affected employees, and is hereby set aside the award for reinstatement and back pay,” said Judge Murgor.
However, the court found that Kenya Airways did not apply a fair selection procedure set out on section 40 (1) (c) of the Act, and consequently unlawfully terminated the employment of the 447 employees. Besides, Appeal Court faulted the Industrial Court in finding that KQ failed to consult with the Allied and Aviation Workers Union, and that it had a mandatory obligation to consult with the ministry of Labour.
On practicability, the judge ruled that the Industrial Court erred having considered it practicable to reverse the retrenchment of 447 employees, and to order their reinstatement to a financially constrained employer, without sufficient regard for the implications of such a decision.
She said the lower court could have considered whether the employer could accommodate the affected employees in the workplace, or effectively deploy them within its operations.
“In my view, the practicability of such an order is implausible having regard to the very nature of the appellant’s business,” said the Judge. Further, the court held that reinstatement would amount to a committal to servitude and bondage on the part of the employee and employer respectively.
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