[2021] KEELRC 2292 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1511 OF 2016

(Before Hon. Justice Hellen S. Wasilwa on 26th January, 2021)

FLORENCE KAVOSA WANYANGA...............................................................CLAIMANT

-VERSUS-

KENYA NATIONAL EXAMINATION COUNCIL...................................RESPONDENT

JUDGEMENT

1. Florence Kavosa Wanyanga filed a Memorandum of Claim dated 5th July 2016 suing Kenya National Examinations Council for unlawful/ forced early retirement. She avers that she joined the Respondent on 4th March 2008 as Senior Deputy Secretary and was confirmed to the position of Senior Deputy and Head of Finance and Administration on permanent and pensionable terms vide a letter dated 06/04/2009. When the Respondent underwent a restructure of its organization, the Claimant assumed the position of Senior Deputy Secretary in charge of Human Resource Management and Administration effective March 2012 and that she severally held forte at the Chief Executive Officer’s office during her employment with the Respondent.

2. The Claimant avers that when she was interdicted by the Respondent in February 2014, she appealed the said decision to the then Chief Executive Officer and was thereafter invited and appeared for a hearing before the Staff Affairs Committee (SAC) on 28/02/2014.

3. She avers that the Respondent exonerated her from all allegations made against her and directed her to report back to work from 10/03/2014 and that the then Chief Executive Officer went on terminal leave on 28/04/2014. That the Acting Chief Executive Officer informed her that all Human Resource functions would be dealt with by the office of the Chief Executive Officer but she would still be required to sign the performance contracts for the Human Resource department. That consequently, the Human Resource Division targets were noted to be lagging behind during the review of the performance contract targets which issue she duly expressly requested the Chief Executive Officer to address the same but her letter was not acted upon.

4. It is the Claimant’s averment that she proceeded for her annual leave on 23/02/2015 for a period of 36 days and resumed work on 16/04/2015. That on 20/04/2015 she received a letter from the Chief Executive Officer informing her that the Respondent’s Board of Directors had decided she proceeds for an Early Retirement from Service. That the said letter further premised the board’s decision on the letter of interdiction dated 18/02/2014 notwithstanding that the issues had been concluded and the interdiction lifted.

5. She avers that the Respondent’s decision to send her on early retirement was therefore unlawful, irregular, marred with misrepresentation of facts further because her performance was highly rated as evidenced in the various appraisals conducted by the Respondent. That her performance for 2014 could not be evaluated against the Human Resource function as the function had been taken over by the then Chief Executive Officer and avers that the decision to send her on early retirement was premeditated to frustrate her career growth and diminish her chances of taking up the vacant position of Chief Executive Officer.

6. She avers that she challenged the early retirement to the Respondent’s Chairperson and sought payment of her terminal dues by a letter dated 16/06/2015 which letter was not acted upon contrary to the rules of a fair hearing. She thus instructed her advocates to demand payment of the accrued terminal dues from the Respondent but the Respondent’s advocates responded denying the Claimant’s claims in total. The Claimant claims against the Respondent for unpaid/accrued leave days; shortfall payment in respect of 2 months’ notice pay as the employer only paid her basic salary; and compensation for the remaining years until attainment of retirement age of 60 years. She prays for an award against the Respondent for:-

a) A declaration that the forced early retirement of the Claimant from her employment on 25th April 2015 was unlawful, arbitrary and unfair.

b) Compensation as particularized in paragraph 21.

c) An award of damages for wrongful termination equivalent to twelve (12) months’ salary in accordance with section 49 of the Employment Act, 2007.

d) Costs of this cause.

e) Interest at the Court rate on (b), (c) and (d) above.

f) Any other remedy or relief that this Honourable Court may deem just and expedient to grant.

7. The Respondent filed a Response dated 26th November 2018 averring that the Claimant’s performance and leadership of her team was poor and that she also had poor relationship with her subordinates that earned her a cautionary letter on 02/06/2011. It avers that it even stripped her of her responsibilities relating to financial administration and assigned her a new role with reduced workload but her performance never improved and she received several other cautionary letters. That the Claimant’s incidences of poor performance became a concern of the Full Council of the Respondent and she was thus asked by the Chief Executive Officer to show cause but that the Claimant never responded to the show cause letter.

8. It admits that the Claimant was interdicted and the same lifted by a letter dated 05/03/2014 but denies that all the accusations against her were disposed of by the issuance of warning letters as directed by the SAC because other issues such as her relationship with senior staff were referred to the Full Council for guidance. That on 19/03/2014 the Chairperson of the SAC presented to the Full Council the report on the Claimant’s performance including after the interdiction and receipt of warning letter. That the Full Council made several observations questioning the process of interdiction of the Claimant including the lifting of the same and further made resolutions on future procedures of interdiction in the Respondent.

9. That the Full Council resolved that an Ad Hoc Committee be formed to conduct interviews so as to establish the genesis of the challenges and issues of the HR Division and recommend solutions to the same. They produced evidence that the Claimant was invited for a meeting with the Ad Hoc Committee which submitted its report in November 2014 and recommended that the Claimant’s service be either terminated or retired in public interest or retired under the 50 years Rule. That the Full Council thus resolved in its meeting of 20/03/2015 that the Claimant be retired under the 50 years Rule as a more favourable mode of termination of her services in the circumstances.

10. The Respondent further avers that the Claimant’s performance had proved to be poor between 2009 and 2015 hence her retirement and that she was paid her full terminal benefits as per her contract and the pension rules of the scheme she was a member of. It avers that the Claimant was aware of the circumstances leading to her retirement and was always given a fair hearing and the Respondent contends that the Claimant failed to adhere to the tenets expected of a public officer. It prays that the Claimant’s suit be dismissed with costs.

11. The Claimant filed a Reply to the Respondent’s Response averring that she was not given a chance to address the complaints raised by Mr. Gachanja during the process of interdiction and that the issue of poor performance was conclusively addressed during her interdiction. She refers to pages 46-50 of the Claimant’s documents and avers that she clearly did everything to perform her duties diligently. She denies attending any other meeting apart from during her interdiction and avers that since the decision to interdict her never emanated from the Full Council, the process was unprocedural. Further, that since no hearing was conducted by the Full Council to allow her express herself, the unilateral decision for her early retirement was unfair and unprocedural.

12. She avers that the Human Resource Policies Manual did not give the Respondent unilateral powers to retire an employee on attaining 50 years and that the spirit of the Policy which is also couched in mandatory terms was to give the employee an option as follows– “An officer on attaining the age of 50 years may opt to retire at any time or may be required to retire…”

Evidence

13. CW1, the Claimant adopted her filed witness statement as her evidence and testified that no disciplinary issue was raised with her before the retirement and that there was no performance evaluation after the interdiction was lifted. That she ought to have been notified of the poor performance and subjected to a hearing of the Full Council before the retirement and stated that she had been due to retire on 23/05/2020. She claims damages for the forced retirement and the salary she would have earned until normal retirement in 2020. She admitted that her leave days and notice were paid to her. In re-examination she stated that if she was so bad, she would not have been retained for that long time.

14. RW1, the Respondent’s Corporation Secretary and Head Legal Services Division testified that she did not personally know the Claimant but was aware of her files and she further adopted her filed statement as her evidence. She produced the Memorandum of Response and the attached appendices as evidence in Court. In re-examination she confirmed that the Claimant was answerable to the Chief Executive Officer and could therefore not be suspended by the Human Resource Committee.

15. I have examined all the evidence and submissions of the Parties herein. The issues for this Court’s determination are as follows: -

1. Whether the early retirement of the Claimant was justified and fair.

2. Whether the Claimant is entitled to the remedies sought.

Issue No. 1 – early retirement

16. The Claimant was retired early from the service vide a letter dated 20th April 2015. The Claimant contends that the early retirement was not fair and justified.

17. The Respondent have submitted that the Claimant was heard before being retired. She avers that the Claimant was heard by the Council on 27/3/2014. The Respondent also aver that the retirement was justified in the public interest as she was found to have poor leadership skills and was guilty of misconduct.

18. The Respondent’s witness was cross-examined on this issue and she indicated that the Claimant was subject to a hearing concerning her performance. The witness also agreed that at page 128 of Claimant’s documents is the Human Resource Manual which gives a process to be followed in case of performance issues.

19. At clause 10. 7 of Respondent’s Human Resource Manual concerning this issue of performance, (10. 7.1 to 10. 7.4) states as follows: -

“10. 7.1 Based on the monitoring and evaluation reports, the supervisor shall on biannual basis discuss and appraise each individual employee in order to assess their competency. Depending on the outcome of the appraisal, the supervisor shall develop appropriate performance improvement programme which will specify relevant corrective actions, rewards and sanctions. (Corrective actions may include training, deployment, supervisor support, counseling, and provision of relevant resources and review of targets. Rewards may include paying bonus, salary increment, promotion, commendation, while sanctions may include warning letters, demotion, deferment of salary increment and termination).

10. 7.2 All appraisal reports shall be submitted to

HRM who will analyze and compile a report with recommendations to be submitted to the performance appraisal moderation committee by appointed the Council Secretary with representation from HRM, Planning and other relevant determents.

10. 7.3 The Committees’ recommendations shall

be presented to the management for review and approval.

10. 7.4 HRM will thereafter coordinate

implementation of approved recommendations which will include feedback to the supervisors and individual employees”.

20. On the issue of performance, the Claimant has indicated that she was interdicted vide a letter dated 18th February 2014 (Appendix 9). The letter of interdiction indicated she had been interdicted in accordance with Clause 12. 3.2. 2 of the Kenya National Examination Council Terms and Conditions of service to give the Staff Affairs Committee (SAC) an opportunity to deliberate on the issue.

21. The Claimant appealed against the interdiction vide her letter dated 19/2/2014 indicating that Staff Affairs Committee (SAC) had no mandate to investigate her after interdiction. She requested that her case be presented to the Kenya National Examination Council Full Board before she is interdicted. She also indicated that she had previously responded to issues indicated in the interdiction letter and the issues were resolved conclusively and this did not require any further action.

22. In the meantime, she was invited to appear before the Staff Affairs Committee (SAC) vide a letter dated 24/2/2014. She was expected to appear before the Staff Affairs Committee (SAC) on 28/2/2014.

23. Vide a letter dated 5/3/2014 the Claimant’s interdiction was lifted with a warning that the issues raised do not reoccur in future. It seems the issues herein rested. However, vide a letter to the Claimant dated 20th April 2015, the Claimant was retired early.

24. From the early retirement letter, the Claimant was retired following her interdiction in February 2014 and her appearance before the Full Council thereafter on issues of her performance.

25. The letter indicated that the retirement was necessitated since her performance as head of Department had increasingly fallen below the expected level leading to inefficiencies in the operations of this key department. The letter further indicated that she had been retired under the 50 year rule with effect from 21st April 2015 pursuant to Part 14. 3.4 of the Human Resource Policies, Procedures and Terms and Conditions of Service Manual of the Kenya National Examination Council which states as follows: -

“An officer on attaining the age of 50 years may opt to retire at any time or may be required to retire from the Kenya National Examination Council service at any time without assigning a cause. The officer shall be required to give 2 months’ notice of retire under the ‘50 year’ rule. The Kenya National Examination Council shall give a similar period of notice to any officer on whom it intends to apply this provision”.

26. It is true that under Part 14. 3.4 of the Respondent’s Human Resource Manual, the Respondent could invoke the 50 year rule and early retire a staff without assigning any reason.

27. However, for the letter addressed to the Claimant, there are reasons assigned to her early retirement which issues relate to matters addressed vide her interdiction in 2014 and which interdiction was lifted.

28. Infact as per the letter lifting the Claimant’s interdiction, there was no indication that she was going to be placed on a Performance Improvement Plain (PIP) to check on her performance.

29. There is also no indication that after the interdiction from 2014 to 2015, the Claimant was invited to appear before the Council in order to be heard before her early retirement.

30. Clause 5. 20. 5 of the Respondent’s Full Council Meeting minutes held on 20/3/2015 state as follows: -

“Given the Resolutions of the Full Council to separate amicably with the employee, the following options were proposed for consideration: -

5. 20. 5.1 Option 1: Termination of service

Not advisable to take this option to avoid possible litigation by the employee.

5. 20. 5.2 Option 2: Retirement on public

interest.

Officer is informed of the process leading to the decision and given a chance to retire in public interest without losing any of her benefits.

5. 20. 5.3 Option 3: Early retirement under the

“50 Year Rule”.

This is the recommended option to consider.

5. 21 The Council may consider option

2 if the officer declines option 3”.

31. The Respondent however agree that the Claimant was never given an option to consider what she would have opted for.

32. Now back to the application of the “50 year rule” on early retirement, the Respondent was well within their mandate to retire the Claimant early within without assigning any reason.

33. However, when the Respondent chose to assign reasons to the early retirement the burden of proving these reasons falls on the Respondent. They alleged poor performance on Claimant’s part without proving the same and without giving he Claimant an opportunity to appear before the Council and present her case.

34. She was not given an option to decide what was the best option for her. She was also condemned on issues raised in 2014 for which she was interdicted and the interdiction lifted. There is no indication that the issues raised after the lifting of the interdiction were lifted were revisited and then she was given an opportunity to make good or defend herself.

35. My finding therefore is that though the Respondent could as well have retired the Claimant early, without assigning reasons, when they chose to assign reason, as per Section 43 of the Employment Act 2007, they have a mandate to prove the same. This they failed.

36. Section 45(2) of the Employment Act 2007 states as follows: -

2) A termination of employment by an employer is unfair if the employer fails to prove:-

(a) that the reason for the termination is valid;

(b) that the reason for the termination is a fair reason:-

(i) related to the employee’s conduct, capacity or compatibility; or

(ii) based on the operational requirements of the employer; and

(c) that the employment was terminated in accordance with fair procedure”.

37. Though this retirement is not a termination perse, but given reasons assigned to it, this was a forced termination and therefore the Claimant was expected to be given reasons and reasons proved and also subjected to a fair hearing process.

38. It is therefore my finding that the early retirement of the Claimant was done unfairly and unjustly and I declare that so.

Issue No. 2

39. On remedies having found the retirement unfair, I award the Claimant maximum compensation equivalent to 12 months salary = 12 x 417,530 = 5,010,360/=

40. I also award her unpaid leave of 19 days = 188,282. 70/=

Total awarded = 5,198,643/=

Less statutory deductions

41. The Respondent will also pay costs of this suit and interest at Court rates with effect from the date of this judgment.

Dated and delivered in Chambers via zoom this 26th day of January, 2021.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE