Man awarded Sh5.7m for wrongful dismissal

 A court ordered an oil company to pay a former employee Sh5.7 million for sacking him because he was disabled.

The Employment and Labour Relations Court found that Kenol-Kobil had violated the law when it dismissed Ephantus Ndung’u.

Company discriminated Justice Hellen Wasilwa found that the company had discriminated against Mr Ndung’u after he had an accident which confined him to a wheelchair.

“I find the claimant was terminated unfairly and I award him 12 months’ salary of Sh780,000,” Justice Wasilwa said. “I also award him exemplary damages for discrimination on account of disability equivalent to Sh5 million.”

The court further ruled that Kenol-Kobil, Ndung’u’s former employer, pay the costs of the suit. Ndung’u was employed as a salesman by Kenol-Kobil in 2011.

He was involved in an accident on August 8, 2012 in the course of duty. His employment was terminated via a letter dated May 7, 2013 with reasons stated as “... his positions’ performance and contribution to the whole process called for immediate action in order to meet company business expectation.”

He was given a month’s salary in lieu of notice and was not paid his dues. Ndung’u was further denied the claims provided for under the group life insurance cover provided for all employees, according to the company’s manual.

“It is unfortunate that a month later in 2012, Ndung’u was involved in an accident which resulted in the permanent injuries confining him to a wheelchair. The assessment of May 2013 on his performance that called for immediate action when he was still unwell was not due to nonperformance but in my view due to his disability,” said Justice Wasilwa.

“...there is no other assessment he underwent between July 2012 to May 2013 which has been exhibited to court to warrant any other explanation.”

Kenya has ratified the United Nations convention on the rights of persons with disabilities. The convention outlaws discrimination on grounds of disability.

“My finding is that indeed Kenol-Kobil treated Ndung’u in a discriminatory manner, in disregard of its own HR manual, as Article (v) which states: ‘No employee should be discriminated against by way of race, religion, colour, sex or physical disability.”

Ndung’u was employed as a sales representative from July 18, 2011, until his termination after an evaluation that found that he was incapable of discharging his duties or perform his obligations under his employment contract. However, his letter of termination did not refer to his incapacitation or disability as grounds for dismissal.

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