How sacked KBC manager got back job, benefits
By - Wahome Thuku | September 10th 2012
By Wahome Thuku
The old adage that life begins at 40 may be true. But also true that life for civil servants may end at 50. Zachary Ochako, an employee of the State owned Kenya Broadcasting Corporation (KBC) could attest to this.
Like many State institutions, KBC’s code of regulations has a rule, which provides for “optional retirement at the age of 50 or more at the initiation of the employee or employer by giving six months notice”.
Ochako was employed by KBC on November 3, 1992, as a Personnel Officer. He rose in rank to become the corporation’s Administration Manager.
On April 15, 2008, he wrote to KBC board of directors requesting for a promotion to salary scale BE2. The board wrote back on April 23, 2008, promising to look into his case alongside others. That was never to be.
On October 30, 2009, the board terminated his employment on the ground that he had attained 50 years of age. The decision was made in a meeting of the directors held on that day.
On December 6, 2010, Ochako sued KBC at the Industrial Court in Nairobi, arguing that the termination was illegal and unlawful. The 50-year rule was an optional and not a mandatory provision for retirement.
He argued that KBC had no unilateral right or discretion to enforce and/or impose the option on an employee. The corporation was obliged under the rule to give him a six-month notice for him to exercise the option. He had not been given that notice.
The case was to be heard on May 31, last year, but neither of the parties turned up for hearing and it was dismissed for non-attendance.
On June 3, last year, Ochako applied for reinstatement and was granted. It was fixed for hearing on September 22.
Only he and his advocate turned up for the hearing. KBC had only filed a statement of defence but never sent an advocate to court.
The hearing, however, proceeded since the date had been taken by agreement of all parties. Ochako’s lawyer made the submissions before Justice Paul Kosgei. He argued that the 50-year rule was draconian and unconstitutional. It was in conflict with the Employment Act, which outlawed unfair termination of employment.
“The corporation’s non-compliance with its own regulations was offensive to the rules of natural justice and the Employment Act,” his lawyer argued.
He said KBC had offended Ochako’s legitimate expectations that the corporation would at all times follow its Code of Regulations. He submitted that the termination was irregular and asked for an order or reinstatement to his previous position without any loss of benefits. In the alternative, he asked for judgement of the lost income at the rate of Sh147,414 per month starting from November 1, 2009, as well as general damages for unlawful termination, costs of the suit and interest.
The court singled out the issue for determination as being whether the termination of Ochako’s contract of employment under the 50-year rule was lawful.
The judge first observed that Ochako’s claim was uncontested because KBC had not sent an advocate during the hearing.
He then went into the corporation’s Code of Regulations. The 50-year rule allowed the employer to terminate the service of any employee without assigning any reason for the decision once the employee attains the age of 50.
“This rule seems to be prevalent in government institutions but has no place in the private sector,” judge Kosgei noted.
From the facts, the only mistake Ochako had done was to attain 50 years of age. There was no evidence or claim of misconduct or improper performance.
Justice Kosgei agreed that the 50-year rule could be misused against employees who were not in good books with senior management.
“Many have been subjected to the vagaries of the capricious rules, which can be imposed without conditions. The question now is whether such draconian regulations are still acceptable in an open, modern and democratic society such as ours,” he added.
The judge said Kenya had enacted a progressive and liberal Constitution that guaranteed fair labour practices and outlawed discrimination on basis of age in Article 27. The termination of Ochako’s employment was discriminative on that basis.
“Indeed not all employees of the respondent (KBC) are terminated upon attaining the age of 50,” the judge said. “In my opinion, age can not constitute ground for dismissal unless one has attained the prescribed retirement age.”
He noted that currently retirement age from public service is 60 years.
Justice Kosgei said the 50-year rule in KBC regulations may have been enacted before the Employment Act of 2007 and the Constitution of Kenya, 2010.
“But its trite law that domestic regulations of employers operating in Kenya must be in tandem with the national law governing employment,” he added.
He said today the law recognises that employees have proprietary interests in their jobs, which are worthy of protection by the law.
The judge said every termination of employment must be supported by a valid reason related to the employee’s conduct, capacity, compatibility or the operational requirements of the employer. It must be effected in accordance with fair procedure and applications of rules of natural justice.
The court held that KBC had violated the Employment Act by terminating Ochako’s job without any valid reason and without according him a hearing in defence.
The corporation did not even observe the draconian 50-year rule, as it did not give Ochako the six-month notice. According to the dismissal letter, the termination took effect immediately.
The corporation also violated Article 4 of the International Labour Organisation convention, which prohibits termination of employment without valid reason and which is part of the Kenyan law as per the Constitution.
“I’m aware that there are other public institutions which still retain the same 50-year rule in their regulations. It is now upon them and the respondent (KBC) to amend their regulations to conform to the requirements of the Constitution and the Employment Act,” Justice Kosgei ruled.
He added: “This court has no hesitation in declaring such regulations as archaic remnants of the past, which must be reviewed in the interest of justice. Public institutions ought to set good examples to the private institutions.”
The judge noted that Ochako was a hardworking employee with a clean record and his case was thus fit for reinstatement.
He held that Ochako had been unfairly dismissed and ordered he be reinstated to his previous position. The reinstatement was to take effect from the day he was sacked on September 30, 2009, with all the salary, allowances and other privileges including seniority backdated.
The court directed Ochako to report to KBC managing director within 15 days from the date of the award for deployment.
The writer is a court reporter.
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