[2024] KEELRC 2188 (KLR)

Hayson v Dhl Supply Chain Kenya Ltd & another (Cause E417 of 2020) [2024] KEELRC 2188 (KLR) (6 September 2024) (Judgment)

Neutral citation: [2024] KEELRC 2188 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E417 of 2020

NJ Abuodha, J

September 6, 2024

Between

Jeremy Hayson

Claimant

and

Dhl Supply Chain Kenya Ltd

1st Respondent

Deutche Post Dhl Group

2nd Respondent

Judgment

1. The Claimant filed his claim on 20th August, 2020 and pleaded inter alia as follows: -a.The Claimant averred that at all material times the 1st Respondent was a subsidiary of the 2nd Respondent and the said 1st Respondent was at all material times the entity through which the 2nd Respondent supply chain and logistics operations were carried out within the Republic of Kenya.b.The Claimant averred that at all material times the Claimant was an employee of the 1st Respondent and by virtue of the said employment the 2nd Respondent being an international company could request the 1st Respondent to second or assign the Claimant to work in or for any of the 2nd Respondent’s subsidiary companies anywhere in the World in line with the 1st and 2nd Respondents policies and procedures. That the Respondents subscribed to the United Nations Global Compact, which among other things bound them to adherence to international Human Rights Principles of Fair Labour Practices.c.The Claimant averred that on or sometimes in September,1998 the Claimant was employed by the 1st Respondent and held various senior roles in the 2nd Respondent’s subsidiaries the last being based in Nairobi as vice President Business Development and Solutions Director earning an Annual salary of Kshs 22,222,812/= together with other emolument. That the Claimant was also a shareholder of DHL Logistics Kenya Ltd a position he holds to date. That the said DHL Logistics Kenya Ltd is also a subsidiary of the 2nd Respondent.d.The Claimant averred that it was an implied term of the contract of employment that the Claimant would be stationed in Nairobi but the 1st and 2nd Respondent could deploy him to work anywhere within Africa or outside Africa. That it was an express term of contract and also the company policy and practice that the Respondents would apply for requisite work permits for the Claimant and Visas for his family members in the event of deployment elsewhere within or outside Africa.e.The Claimant averred that by a letter dated 28th October,2014 the Respondents deployed him to work with another of the subsidiary company of the 2nd Respondent situated in Muscat, Oman as the Managing Director of Bahwan Exel, LLC. That the Claimant accepted the assignment and duly reported on duty which assignment the Respondents Midterm assignment policy alluded that assignment would be for a period of 1-3 years.f.The Claimant further averred that the Respondent’s Employment Policy and Assignment amounted to validation of the employees existing terms and conditions of employment. That his salary together with other emolument during the duration of the assignment in Oman were paid by the 2nd Respondent’s subsidiary joint venture partner, M/S Bahwan Cybertek LLC but the Claimant continued to receive his work related bonuses and 2nd Respondent’s Company share options from the 2nd Respondent.g.The Claimant averred that it was a term of the contract between the parties and /or the prevailing policies schemes procedures and written agreements that: -i.The company would maintain the Claimant’s work permits in Kenya and keep it current.ii.The Company would facilitate having the Claimant’s permanent residents permit in Kenya processed to ensure the Claimant could return to his home country at the end of the assignment.iii.The Company would meet the relocation costs back to his home country Kenya at the end of his assignment in Oman including the cost of ferrying his personal goods and insurance.iv.Pay for air tickets in economy class for the Claimant and his family.v.The 2nd Respondent had the discretion to relocate the Claimant and the benefits applicable to the new station amended and /or varied accordingly.vi.That the redeployment to Oman was a short to midterm assignment and the Claimant would return once the Business in Oman was stabilized.h.The Claimant averred that by a letter dated 11th September,2019 the 2nd Respondent accepted unconditionally the Claimant’s request to end the assignment and the Claimant’s resignation from Bahwan Excel LLC of Oman for reasons within the 2nd Respondent’s knowledge.i.The Claimant averred that in breach of the Claimant’s legitimate expectation and in breach of his constitutional rights to fair labour practices the Respondents jointly and severally without any colour of right breached the Claimant’s rights.j.The Claimant pleaded for particulars of special damages as follows: -a.Port demurrage charges, customs duties, storage charges levied on personal goods ………………………………………………….Kshs 6,741,500/=k.Cost of Visa…………………………………….………Kshs 120,000/=l.Cost of travel (Air tickets) …………………..……….Kshs 621,000/=m.Cost of freight of household goods ……………………….Kshs 2,580,000/=n.Loss of future salary plus benefits for able employment period…………… Kshs 554,642,095/=

2. The Claimant in the upshot prayed for the following against the Respondents;a.A declaration that the Respondent breached the Claimant Legitimate expectation and constitutional rights to fair labour practices.b.The Respondents be directed by an order of this Honourable Court to reinstate the Claimant in employment with full benefits.c.In the alternative this Honourable Court be pleased to award the Claimant as followsd.Damages for breach of contracte.Special Damages ……………………………….Kshs 12,000,000/=f.Loss of salary for the remaining employment period W.E.F 1st December 2019 to December,2032……….Kshs 389,968, 893/=g.Employment benefits for the remaining employment period…………………………………………… Kshs 164,673,202/=h.Costs of the suit and interests.

3. The Respondents filed their Memorandum of Defence dated29th September, 2020 and averred inter alia as follows;i.The Respondents averred that they would raise a PO on suing the wrong parties.ii.The Respondents denied that the Claimant was their employee, that he was unlawfully terminated or that any of his rights were breached as alleged or at all. The Respondents averred that the Claimant was not entitled to the orders sought.iii.The Respondents further averred that the Claimant voluntarily resigned from his employment with Excel, he was paid his final dues as per the terms of his contract and the Respondents were not involved in the Claimant’s resignation. That their companies are limited liability companies incorporated under the laws of Kenya and Germany respectively.iv.The Respondents averred that the Claimant was an employee of the 1st Respondent until he took up employment with Exel Middle East FZE as the MD of Bahwan Cybertek LLC in the Sultnate of Oman by a contract dated 28th October,2014. That the Claimant has never been an employee of the 2nd Respondent in any capacity and the suit against it should be struck out. That the Claimant terms of employment was governed by the contract entered with Exel which the Claimant expressly or by implication accepted the said terms by relocating to Oman as per the contract, paid his dues as per contract in Oman Rials and in all other ways complied with the terms of the contract. That the Claimant is estopped from disputing the binding effect of the contract.v.The Respondents averred that the Claimant’s employment with the 1st Respondent ceased when he took up employment with Exel on 28th October,2014 and the Claimant willingly resigned his employment with Exel on 11th September,2019. That at all material times the Respondents adhered to international Human Rights and the Principles of fair Labour practices.vi.The Respondents averred that the Claimant’s contract with Exel provided that Exel will use its best endeavors to help the Claimant obtain the necessary work, resident and other permits. That taking up the employment with Exel was not deployment but a separate employment contract. That the Claimant was never assigned to Oman by any of the Respondents but took up a new contract with Exel and was seconded to Bahwan Exel LLC.vii.The Respondents averred that the Midterm Assignment policy only relates to assignments where an assignee is issued with an assignment letter stating the terms of their assignment. That the Claimant was an employee of Exel Middle East FZE and was seconded by his employer to Bahwan Exel LLC. That the Claimant was being paid by his employer as per his contract.viii.The Respondents further averred that they had no obligation to maintain the Claimant’s work permit in Kenya for the duration that he was working and exclusively domiciled in Oman. That as a matter of law a work permit cannot be issued while the Claimant was working in a foreign country. That they had no obligation to process the Claimant’s permanent residency permit. That it was the Respondents policy that they do not support applications for permanent residency, unless due to business needs.ix.The Respondents averred that they did not in any way agree to facilitate the Claimant’s relocation. That this was an obligation undertaken by his employer as per the contract of employment. That the Midterm Assignment policy provides that in the case of assignee who voluntarily resigns from employment no transportation or relocation related costs will be provided for the assignee and their accompanying family.x.The Respondents further averred that the Claimant’s position in Oman was new employment that he took up voluntarily thereby terminating his employment contract with the 1st Respondent. That the Claimant was aware that there was no position for him in Kenya when he resigned from his employment. That the Respondents spent a lot of time facilitating option for the Claimant in Europe and in his home country the UK but the Claimant declined.xi.The Respondents averred that the Claimant’s resignation was unconditionally accepted and stated that Exel was disappointed with his performance of duties. They denied breaching the Claimant’s legitimate expectations and his constitutional rights as alleged or any particulars of deceit herein.xii.The Respondents averred that the Claimant was not entitled to the reliefs sought moreso on reinstatement as he was an employee of an Oman Company. That any order of reinstatement was barred by limitation under the Employment and Labour Relations Court Act. That the Claimant was not entitled to salary or employment benefits for the alleged remaining period of employment as he voluntarily resigned from employment. That there was no basis in law or in fact for payment of anticipated salary.xiii.The Respondents averred that the suit discloses no reasonable cause of action, is an abuse of court process is barred by limitation and ought to be struck out.

4. The Claimant filed a reply to the Respondents’ defence dated 27th October,2020 and averred that the court had jurisdiction to hear this suit, that the 2nd Respondent was the parent company and was controlling the 1st Respondent among other companies. That he was employed by the 1st Respondent alongside Bahwan Exel LLC and Exel, Middle East FZE and Exel Overseas Ltd subsidiaries of the 2nd Respondent. That the 2nd Respondent was paying for his work-related bonuses and the 1st Respondent was applying for his work permit where it maintained his work permit in Kenya through to 2017 when he was on the assignment subject matter of this dispute. That the Claimant requested to end the assignment. That the Respondent’s policy in fact and in law was that an employee would work in any of the subsidiaries. That he paid all his taxes in Kenya as stipulated under the law.

EvidenceOn 25th October,2023 counsel for the parties, that is Mrs Wambugu holding brief for Mr Mugo for the Claimant and Kahora for the Respondents gave their opening address outlining their viewpoint over the issues in dispute. The Court identified the underlisted issues for trial and encouraged the parties to align the evidence to the issues framed thus:a.When the Claimant moved to Oman, did he do so as the Respondent’s employee or did he terminate his Kenya Contract with the Respondent and joined a different employerb.When the Claimant returned to Kenya after the Oman assignment was he still an employee of the Respondent hence entitled to resume his duties.c.If suppose the Claimant is right in his assertions did the Respondent terminate his employment in accordance with the Employment Act.d.Is the Claimant entitled to the remedies sought in his statement of claim.e.By way of submission is the 2nd Respondent properly joined in the suit. 5. The Claimant’s case was heard orally on the above date withClaimant (CW1) testifying in court where he testified that he knew the Respondents well; the 1st Respondent was his former employer. That he was employed in 1998 in Kenya by entering in to contract of employment as Business Development Director in Kenya. That his salary was Kshs 22 Million per annum and bonuses.

6. CW1 testified that bonuses were based on performance of the local company as well as Deutche Post Group. That he was a shareholder in DHL Logists where he is still a shareholder. That shareholding was by virtue of employment as a director.

7. CW1 testified that in 2014 he was requested to take up a position in Oman in a sister company owned by 2nd Respondent and he took up the assignment. That the letter of offer was generated by the 1st Respondent. The said letter did not terminate his contract in Kenya. That his relocation was communicated to sister companies. That the bulletin was issued by the 1st Respondent.

8. CW1 testified that there was a policy on midterm assignment which was for up to five years. That at the end of the assignment if there was unavailability of suitable position the contract was to be terminated in accordance with home country labour laws. That he never terminated his Kenyan contract. That he terminated the Oman assignment in line with the policy which allowed termination of assignments and he invoked the clause of assignee terminating the assignment.

9. CW1 testified that his work permit remained in force until 2017 and the Respondent continued to renew his Kenya work permit while in Oman. That it was in line with policy for the Respondent to facilitate job options for him and he never declined the options as he was not aware that the 1st Respondent was looking for job options for him.

10. CW1 testified that he was never paid his terminal dues when took up Oman assignment as well as 2014-2015 bonuses. That he was entitled to relocation allowance when he moved to Oman which allowance was payable from home country of assignment and back. He raised invoice for the back journey to Kenya. CW1 adopted his witness statement and bundle of documents as his evidence in chief and prayed that the court allows prayers sought in his claim.

11. In cross-examination CW1 confirmed that the last contract did not mention the 2nd Respondent. That he did not sign the Oman contracts or any version of it. That he was being appointed as MD Bahwan Exel LLC which role he took up as the assignment was governed by the midterm policy and his contract in Kenya. CW1 confirmed that he was paid 60,000/= Oman Riyals as per clause 3. 1 and that he reported earlier as much as the contract was effective March 2015. That it was not his obligation to renew his work permit but the 1st Respondent’s responsibility. That he had work permits to work in Oman.

12. CW1 confirmed that he was in Oman for 5 years on midterm policy assignment and a bulletin was issued by the respondent over his assignment. He stated that he did not have an assignment letter and that the announcement did not have terms but the assignment policy did. That the agreement superseded all other employment agreements. That his contract were governed by law of Oman and confirmed that the power of attorney was his and he filed a suit in Oman as he was stranded and needed to pay his bills. That the suit was against Bahwan Cybertek LLC. That the suit was filed before the present suit and he disclosed the existence of the Oman suit in the present suit.

13. CW1 confirmed that he pursued his transportation costs to Kenya. That the termination of the assignment was voluntary as he requested for it and got a response of his letter and that he had receipts for the claim of Kshs 12 Million as special damages and that he had an open-ended contract with the 1st Respondent. CW1 confirmed that Bahwan LLC and 2nd Respondent were separate legal entities but owned by the 2nd Respondent. He further stated that he was paid in Oman currency while in Oman and that he paid his Kenyan taxes while in Oman. According to him, his Kenyan contract was never discharged and that the respondent last applied for his work permit in 2017.

14. In Re-examination CW1 clarified that the Respondent’s counsel applied for his resident permit. That the announcement did not provide for termination of assignment and that he did not sign contracts for Bahwan Exel which were originated by the 1st Respondent.

15. The Respondent’s case was heard on 14th February, 2024 where they called one witness, the Senior Business Partner for East Africa who adopted her witness statement, bundle of documents and supplementary exhibits as her evidence in chief. RW1 testified that the Claimant was an employee of the 1st Respondent and he left on April 2015 after getting another job with Exel Middle East as MD of Bahwan Cybertek. That he then ceased being an employee of 1st Respondent. RW1 further stated that the Claimant no longer worked for the said Bahwan Cybertek. That he sued the said Bahwan Cybertek and obtained a judgment which was before the court.

16. In cross examination RW1 confirmed that she had been in her position since 1st December 2022. That the previous HR partner was Lilian. That the two respondents were related but distinct entities. That the 1st Respondent was an affiliate of the 2nd Respondent in Kenya.

17. RW1 confirmed that the Claimant was first employed by the 1st Respondent in 1998 by Tibbet and Britten which was acquired by the 1st Respondent. That she was not aware of the shareholding information. That the Claimant joined the 1st Respondent on 24/3/2013 and there was a contract signed by both parties. RW1 confirmed that the contract for Oman was signed by the CEO Middle East & Africa. That it was signed by VP HR Middle East Africa which was in the letter head of DHL Supply chain. It was her evidence that the Claimant was not assigned to Oman and no assignment letter was ever issued. She confirmed that announcement was done by DHL Supply Chain on 27/3/2015. She confirmed that the document was not signed but still stated that it was signed by CEO middle East Africa the same person who signed the Claimant’s letter of appointment.

18. Regarding the midterm assignment policy she stated that the Claimant had an appointment and not an assignment. That the contract was not signed as the last page was not attached. That the contract was never signed. That the draft contract was not signed. That they filed a signed contract but the last page was missing. RW1 confirmed that upon termination by assignee the home country was to secure a suitable position for the assignee. That there was a second attempt to secure job for the Claimant in Europe and home country but he declined. That she did not have document or letter to show the Claimant declined an offer of employment.

19. RW1 confirmed that the Claimant’s contract in Kenya was not terminated but he took another contract in Oman so his contract with the 1st Respondent terminated. That she had documents to show the 1st and 2nd Respondent were separate entities.

20. RW1 confirmed that the document dated 15/9/2016 addressed to the Claimant was signed by the CEO DHL-Supply Chain and EVP HR -DHL. That the letter from the 2nd Respondent was signed by the DHL-Supply chain. That the Claimant was paid his terminal benefits as per the pay slip.

21. RW1 confirmed that the Claimant ceased to be 1st Respondent employee when he took up a new contract in Oman and further that the Claimant was entitled to his pension and this was not payable by the 1st Respondent. That she was not aware if the Claimant was paid relocation allowance to Kenya.

22. In Re-examination RW1 clarified that there was no assignment letter before the court and the Claimant’s terms in Oman were contractual in his contracts. That the 1st Respondent did not have the Oman Contracts as Bahwan would have them. That Bahwan had been ordered to pay the Claimant relocation costs.

Claimants’ Submissions 23. The Claimant through his written submissions dated 2nd April, 2024 submitted on the issue of whether the Claimant went to Oman as an employee of the Respondents, that the Claimant was first employed by the 1st Respondent in 1998 when the 1st Respondent was by then called Tibbet and Britten Kenya Limited. That later the company changed its name to DHL Supply Chain Kenya Limited a fact which was common between the parties. Counsel further submitted that the Claimant was an employee of the 1st Respondent and by virtue of the said employment the 2nd Respondent being an international company could request the 1st Respondent to second or assign the Claimant to work in or for any of the 2nd Respondent’s subsidiary Company’s anywhere in the world in line with the 1st and 2nd Respondents policies and procedures.

24. Counsel relied on clause 7 of the contract dated 24th March 2013 which required the Claimant to work outside Africa and be entitled to relocation allowance as per prevailing relocation policy. That by a letter dated 20th June,2013 the 1st Respondent confirmed the Claimant’s appointment as the Vice President Business Development for Middle East and Africa effective 1st July,2013 where he was to report to CEO, Middle East & Africa, Mr. Rob Ballentine and David Christmas SVP Business Development; APMEA.

25. Counsel submitted that by a letter dated 28th October 2014 the Respondent deployed the Claimant to work with another of its subsidiary companies in Muscat, Oman as the MD of Bahwan Exel LLC and the Claimant accepted the assignment and duly reported on duty.

26. It was the Claimant’s submissions that on 27th March,2015 the 1st Respondent made a global announcement confirming the appointment of the Claimant within its joint venture in Oman Bahwan Exel. It was announced that effective 1st April, 2025 Jeremy Hayson would take up the assignment of MD Oman reporting to CEO-MEA.

27. Counsel submitted that the Claimant’s salary and other emoluments during his assignment were paid by the Bahwan Cybertek LLC but he continued to receive his work-related bonuses and the 2nd Respondent company share options from the 2nd Respondent. He further submitted that the Claimant’s employment with the 1st Respondent was never terminated when he took the position of MD of the Joint venture partner Bahwan Exel LLC in Oman as the same was a mid to short term assignment for about 1-3 years but his assignment in Kenya was for 5 years and that his assignment was governed by midterm assignment policy where assignee would continue to be bound by the home country organization during the period of assignment. That the Claimant terminated his assignment in Oman as provided for under midterm assignment policy clause ii.

28. Counsel submitted that the only one fully signed employment contract was the one dated 24th March,2013 which had not been terminated or any final dues in any form paid by the Respondents to the Claimant.

29. On the issue of Respondents’ breach of Claimant’s rights, counsel submitted that vide an email dated 6th September,2019 the Claimant wrote to the 1st Respondent concerning his treatment on his assignment in Oman where he raised several issues concerning his frustrations with the Respondents such as his unsigned contracts, unsubmitted permanent residency application forms, his request for a new role after completing his assignment was not answered. Further his exit settlement and terminal dues for the contract in force was to be settled if no new role or position was secured for him in his home country.

30. Counsel submitted that on 7th October,2019 the 1st Respondent replied to the Claimant’s email where it admitted being aware of the Claimant’s relocation challenges and distress being caused to the Claimant and his family and undertook to discuss the matter and revert to the Claimant. That the Respondents were to cater for the Claimant’s costs of relocation but failed to do so and he had to pay for the said costs and expenses and further to date no new role or position had been given to the Claimant by the Respondent.

31. Counsel submitted that after the Claimant having dutifully and diligently worked for the Respondents for over 20 years, the Respondents breached the Claimant’s legitimate expectations after termination of his assignment in Oman as he expected to be given a new role or a comparable position in his home country Kenya and if a comparable position was not available to have his contract of employment properly terminated with final dues settled in accordance with Kenyan employment and labour laws.

32. On the issue of whether the Claimant was entitled to remedies claimed counsel submitted that the Claimant had illustrated that the Respondents did not cater for the special damages and he produced documents such as receipts and invoices of the expenses hence he was entitled for them.

33. On the loss of salary counsel submitted that the Claimant was entitled to the same as well as other employment benefits.

34. Counsel relied on the cases of Western Excavation Ecc Ltd vs Sharp (1978) 2 KLR 344 and Coca Cola East & Central Africa Limited vs Maria Kagai Ligaga (2015) eKLR on constructive dismissal. Counsel relied on the case of Banking Insurance and Finance Union(Kenya) vs National Bank of Kenya Limited (2018) eKLR on the order of reinstatement. Counsel also relied on the cases of GMV v Bank of Africa Kenya Limited and others on the award of general damages.

35. Counsel submitted that secondment involves leaving the service of principal employer to a secondary one. That secondment does not constitute severance of the employees current employment and does not constitute creation of a new employment contract. That at the end of secondment the employee goes back to the previous employer. Counsel relied on the cases of David Barasa vs British Peace Support Team & Another (2016) eKLR and an Indian case of Centrica India Offshore PVT Ltd vs CIT (W.P) (C) No. 6807/2012 (Del) among others on the issue of secondment.

36. Counsel submitted that the Claimant proved his case that he was never terminated from 1st Respondent employment, that he went to Oman on a short-term assignment hence entitled to the reliefs sought in his claim.

Respondents Submissions 37. The Respondents did not file their submissions either on the CTS or in the physical file, they did not attend court when the matter came up on 27th May,2024 for mention to confirm filing of submissions and taking a judgment date and the court will rely on their pleadings filed in this court to make it analysis.

Judgment 38. The court has reviewed and considered the pleadings by both parties and testimony by both parties and notes this Court’s ruling delivered on 24th November,2022 by Lady Justice M.Mbaru I have on the Respondent’s PO challenging the Jurisdiction of this court and the issue of the Claimant having sued the wrong Respondents. The Court observed clearly that the Claimant was an employee of the Respondents and the only valid contract was the one signed on 24th March,2013 since the other Contracts at Oman were never signed. I agree with the ruling which remains valid unless challenged. The respondent although filed Notice of Appeal against the ruling never appraised the court of the fate of the appeal. The Court therefore frames for determination the following three issues.a.Whether the Claimant was unfairly terminated.b.Whether the Claimant’s rights of legitimate expectation and fair labour rights were infringed by the Respondents.c.Whether the Claimant is entitled to reliefs sought.

Whether the Claimant was unfairly terminated 39. This court having established that the Claimant was an employee of the 1st Respondent who could be seconded or assigned to work in 2nd Respondent subsidiary companies outside Africa as stipulated in the Claimant’s contract then after the midterm Assignments, the Respondents were supposed to offer the Claimant a similar or comparable position in the home country Kenya. It came out clearly that the Midterm Assignment provided for assignee termination and clearly the Claimant had exceeded the period given for such assignments of 1-3 years as the Claimant had stayed for 5 years.

40. This court notes that the Claimant invoked that clause which was Clause ii of the Policy and terminated the assignment in Oman having completed the same and notified the 1st Respondent. The employment contract between the Claimant and the 1st Respondent was never terminated since the Claimant went on the midterm assignments at one of the 2nd Respondent subsidiary. The 1st Respondent made the global announcement in 27th March 2015 that the Claimant would be taking over the MD role at Bahwan Exel LLC. There was no mention of termination of his contract.

41. The court further notes that the Claimant was also never paid any terminal dues under his Kenyan Contract and that the payment to the claimant as shown in his payslip was bonus for the 2014-2015. Whereas this court notes that this was a peculiar case of secondment where the employee after secondment goes back to the previous employer, the Respondents refused to cater for the Claimant’s relocation costs and refused to offer him a suitable position in the home country despite him using his own means to relocate.

42. The court also notes that the Respondents did not terminate the Claimant’s contract as per employment laws if they did not have a suitable position for him. The Respondents alleged that they tried to source jobs for the Claimant in Europe and UK but he declined but during hearing it came out clearly that the Respondents’ witness did not have any document in court to show that the Claimant declined any job offers.

43. In the circumstances the Court takes the view that the claimant was constructively dismissed and in a manner that amounted to unfair termination. The Claimant confirmed that in as much as his salary and emoluments were paid in Oman currency by the Bahwan Exel LLC, his work-related bonus and company shares options were paid by the 2nd Respondent in Kenya shillings.

44. The principle of constructive dismissal was elucidated by the Court of Appeal in the case of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR where it was observed as follows:-The key element in the definition of constructive dismissal is that the employee must have been entitled or have the right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which gives rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behavior towards him was so unreasonable that he could not be expected to stay - this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constituted a repudiatory breach of the contract of employment - this is the contractual test. The contractual test is narrower than the reasonable test.

45. In this case the breach of the Claimant’s labour rights amounted to constructive dismissal on the part of the Respondents.

Whether the Claimant’s rights of legitimate expectation and fair labour rights were infringed by the Respondents. 46. This court has already established that the Claimant was entitled upon resigning in Oman to return to home country and a similar position or comparable one be given to the Claimant by the Respondents since he was still their employee as per Clause 1 (ii) of the policy. The Respondents refused to cater for the Claimant’s relocation costs despite vide the email of 7th October,2019 in reply to the Claimant’s concerns acknowledging that they understood the challenges with the Claimant’s relocation and the distress caused to his family. The employment contract provided that he could work outside Africa and in case of permanent relocation he be entitled to company sponsored relocation as set out in the Company’s prevailing relocation policy as per clause 7. 1 and 7. 2 of the Contract.

47. The Claimant had legitimate expectations that once he comes back to his country he would continue working with the Respondents and if there was no suitable position that his terminal dues would be paid and his contract be properly terminated as per Kenyan laws. The same did not happen hence breaking the Claimant’s expectations who had worked with them for over 20 years.

48. The threshold in determining a claim for an alleged breach of a legitimate expectation is as determined in Mary M Gitao & 3 Others v Chief Registrar – Judicial Service Commission & 3 others [2017] eKLR where the Court is required to consider three key issues.(1)Whether a legitimate expectation has arisen(2)Whether it would be unlawful for the authority to frustrate such an expectation and(3)If it is found that the authority has done so, what remedies are available to the aggrieved person.”

49. In this case it was clear the same expectations were breached by the Respondents. The claimant alleged that the Respondents refused to cater his relocation cost together with his family, refused to renew his work permit and permanent residence permits. The last renewal was in 2017 while he was still undertaking his assignment in Oman. The Respondents ought to have maintained those records up to date and catered for the Claimant’s relocation costs as provided for in their policy documents.

50. The court notes that it came out clear that the Claimant sued the Bahwan Company for relocation costs which the court ordered it to pay but still that does not mean that his rights were not infringed. This amounted to unfair labour practices under Article 41 of the Constitution and breach of the Claimant’s constitutional rights.

Whether the Claimant is entitled to reliefs sought 51. Once the Court finds that the employee was unfairly terminated the first remedy is usually damages for unfair termination. In this case the Claimant sought for reinstatement which is one of the relief under section 49 of the Employment Act but since it is more than 2 years since the parties parted ways in 2019 this prayer is not tenable. When it comes to damages for unfair termination this court is guided by considerations under section 49(4) of the Employment Act. The Claimant had worked with the Respondents for over 20 years since 1998, the nature of his termination which was unlawful together with breach of his rights entitles him to the maximum compensation of 12 months.

52. The prayer for special damages fails since the same was awarded in the Oman court case. The prayer for loss of salary and other benefits also fails this being an employment contract which could come to an end due to other factors other than termination like death among others. The Court is purely governed by the section 49 of the Employment Act on what to award which must be related to those given under the Act. In the case of Engineer Francis N. Gachuri v Energy Regulatory Commission [2013] eKLR (Industrial Cause No. 203 of 2011) the court held as follows:“There is no provision for payment of damages to the date of retirement. This is because employment like any other contract provides for exit from the contract. The fact that the Claimant’s contract was referred to as permanent and pensionable does not mean it could not be terminated and once terminated, he can only get damages for the unprocedural or lack of substantive reason for the termination. No employment is permanent. That is why the Employment Act does not mention the word “permanent employment.”

53. In conclusion the Claim is found merited and is hereby allowed as follows: -

54. In conclusion the Claimant’s claim is hereby allowed with costs as follows:a.12months’ salary as compensation for unfair termination……Kshs 22,222,812/=b.Certificate of service if not issued.c.Costs of the suitd.The award shall be subject to taxes and statutory deductions where applicable but shall attract interest from the date of judgment until payment in full.It is so ordered.

DATED AT NAIROBI THIS 6THDAY OF SEPTEMBER, 2024 DELIVERED VIRTUALLY THIS 6THDAY OF SEPTEMBER, 2024ABUODHA NELSON JORUMJUDGE