The best interest of a child, more so those with special needs, supercedes the employer’s interest to transfer an employee, the Employment and Labour Relations Court Judge Jemimah Keli has ruled in a landmark judgment.
The judge said that although employers have powers to transfer employees, she said that the rights of a child to be taken care of, the emotional connection to a parent, rank higher, with employers now being required to give reasonable accommodation to employees with children before effecting the transfers.
She was of the view that the International Labour Organisation convention was clear that male and female workers with family responsibilities ought to be engaged without bringing a conflict between their employment engagement and their family responsibilities.
She, however, pointed out that short assignments away from family do not fall under the same bracket as transfers.
“The principle of the best interest of the child and, in this case, a special child, would prevail over the principle of management prerogative in effecting transfers. In such cases, the employer must demonstrate reasonable accommodation to the employee,” said Justice Keli.
The judge was settling a dispute between Isaac Kihiu and his employer, the Kenya School of Government.
Kihiu was transferred from Nairobi to Baringo last year. He, however, lamented that he has a special needs child who requires attention and specialised care and assistance for daily activities such as homework.
Kihiu told the judge that despite KSG being aware of his predicament and a requirement of a special school which was not in his new work station, he was nevertheless ordered to report there.
In response, KSG stated that it had the right to transfer any employee to its four other campuses. It further stated that there was evidence to show that as a senior employee, he often travelled outside Nairobi for assignments for days or weeks without any complaint.
It asserted that the regular travels were evidence, demonstrating that he was not involved in any critical role in the management of his child.
The government learning institution also stated that Kihiu would not have a problem taking care of his family as he was provided for with a full medical insurance cover, adding that the child could also be taken care of by other members of the family while he is away.
Justice Keli’s judgment further narrows down Justice Byrum Ongaya’s verdict on the rights of employees with families to children.
In his judgment last year, the now Court of Appeal Judge ordered employers to mainstream their rights, especially on transfers.
Justice directed that his judgment be served to the Labour Cabinet Secretary, the Central Organisation of Trade Unions of Kenya (COTU-K), the Federation of Kenya Employers (FKE), the National Police Service Commission, and the Public Service Commission to mainstream the rights of workers with family responsibilities.
The judge was determining a case filed by a senior Directorate of Criminal Investigations officer, Inspector of Police Isaac Kirimi, who was transferred from Nairobi to Lokitan, a station 600 kilometres from the city.
He quashed the transfer and ordered that the NPSC should always factor in the needs of his child first whenever it wanted to move him from one station to another.
Justice Ongaya also ordered the Attorney General of NPSC to come up with a policy that regulates the transfer and other rights of police officers whose dependents are suffering from extreme forms of physical and cognitive disability and other family responsibilities.
“The Court holds that the respondents and all employers ought to take necessary steps to ensure that men and women workers with family responsibilities are adequately protected against discrimination and unfair treatment in policy and practice. Such discrimination must be visited with adequate compensation for victims,” said Justice Ongaya.
He further said that the Ministry of Labour and Social Protection, employers’ organisations, and workers' organisations should prioritize policies, laws, practices, terms, and conditions that protect the rights of working men and women with family responsibilities.
According to him, the ministry and its officers should report on statistics on workers who may be suffering such discrimination and mistreatment.
In this case, Kirimi lamented that his employer knew that he had a minor who required constant medical checkups, special school, and close parental attention, which required him to be within the city.
He told the court that after the minor was diagnosed in 2022, doctors recommended that the minor be transferred to receive proper care.
At the time, Kirimi narrated that he was in Hulugho, Garissa County. He applied to be moved to the DCI Embakasi following a report by the DCI clinic officers.
Kirimi told the court that he wss however, transferred three times in a span of two years.
He moved to court after he was transferred to Lokitan on September 29, 2024. His internal appeal challenging the transfer was also rejected on October 14, 2024.
The officer further said that his employer had also cut short his education. He stated that he had also enrolled for a Bachelor's of Laws at the University of Nairobi.
He stated that his superiors required him to move to Lokitan within three days despite knowing that the area had no special facilities for his child and that he needed to complete his education.
His wife supported the case sayung that NPS had violated the minor’s rights to parental care, protection from abuse, neglect, and all forms of inhuman treatment, and to basic nutrition, shelter, and health care.
In addition, she argued that transfer indirectly contravenes their child’s right to be treated with dignity, his right to have access to education, and his right to access the materials and devices vital to him overcoming constraints arising from his condition.
NPSC opposed the case. It argued that Kirimi was transferred to Lokitang in accordance with the police standing orders. According to the commission, all other officers, other than the Inspector General of Police, Deputy Inspector General of Police, and Director of Criminal Investigations, can be transferred to work anywhere in the country.
It also claimed that the DCI had, on September 2, 2024, received a complaint from a member of the public that Kirimi had allegedly intimidated a complainant to withdraw a civil case.
The commission claimed that a decision was taken to transfer him outside Nairobi with an aim to protect the witness and conduct fair investigations.
It argued that he had failed to disclose to the court that he had been adversely mentioned.
DCI filed its response through the AG.
It argued that when Kirimi was employed, he agreed to be deployed to any part of the country. The Mohammed Amin-led agency said that it informed Kirimi of the complaints leveled against him, but he allegedly refused to cooperate with the investigating officer.
DCI also argued that the officer was using his child’s medical history to avoid the transfer. It argued that the evidence in court showed that his child was last taken ill in 2022 when he was taken to the hospital. It asserted that there was no evidence from a doctor that the minor required special care.
On education, DCI argued that the work of an officer always comes first.
In his further reply, Kirimi said that he was victimised and removed from the duty roster after the court temporarily stopped the transfer. He said that he was no longer given work to do and that he was subjected to a disciplinary process in a record three days.
He also denied claims of intimidating a witness, adding that DCI officers investigated him on a fictitious claim without providing any evidence to show that he had either received a bribe or intimidated a witness. He further denied being adversely mentioned in the civil case.
The officer argued that his employer had failed to distinguish his child’s condition from a disease. Kirimi said that his wife was also lactating and that NPS had approved that he should go back to class.
After considering the rival submissions, Justice Ongaya said that it was unfair for NPS to approve his education pursuit only for it to turn around without a justification.
“ It must be most whimsical and unreasonable for an employer to make such an approval and proceed to make avoidable decisions that undermine the approval granted to the worker and the Court finds the impugned transfer in contravention of the 1stpetitioners’ right to fair administrative action per section 47 of the Constitution of Kenya, 2010 and further as amounting to unfair labour practices in contravention of Article 41 of constitutiont,” he said.
At the same time, he argued that the best interest of the minor was central to the case. He said Kirimi had proved that he had a special parental responsibility that needed to be factored in.
