[2015] KEELRC 569 (KLR)
The court held that the Respondent's unilateral reduction of the Claimant's retirement age from 65 to 60 years, based solely on a government Circular and without the Claimant's or his Union's consent, was unlawful and unfair. The court emphasized that contractual terms, especially those relating to retirement age,...
Source-derived case information.
- Citation
- [2015] KEELRC 569 (KLR)
- Parties
- Claimant: Jeremiah K. Kandagor; Respondent: Masaai Mara University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 506 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Notice of retirement declared unlawful and unfair. Claimant to be retained in employment with all contractual benefits unless lawfully varied. Costs awarded to Claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Retirement Age Variation, Unilateral Contract Variation, Public Sector Employment, Unfair Labour Practices
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah K. Kandagor
Claimant
Masaai Mara University
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Respondent could unilaterally vary the Claimant's contractual retirement age from 65 to 60 years.
- 2 Whether the Circular issued by the Permanent Secretary could lawfully override the agreed contractual terms between the parties.
- 3 Whether the unilateral reduction of retirement age constituted an unfair labour practice.
Ratio Decidendi
The court held that the Respondent's unilateral reduction of the Claimant's retirement age from 65 to 60 years, based solely on a government Circular and without the Claimant's or his Union's consent, was unlawful and unfair. The court emphasized that contractual terms, especially those relating to retirement age, cannot be varied unilaterally by the employer and that any such variation must be mutually agreed upon. The Circular, being a directive from a third party, could not override the express terms of the employment contract. The court further noted that such unilateral action amounted to an unfair labour practice, which is prohibited under Kenyan law. Consequently, the notice of...
Court Disposition
Claim allowed. Notice of retirement declared unlawful and unfair. Claimant to be retained in employment with all contractual benefits unless lawfully varied. Costs awarded to Claimant.
Orders
- The notice of retirement dated 3 June 2014 varying the terms of the Claimant’s contract of employment is declared unlawful and unfair.
- The Claimant shall be retained in employment with all the benefits in accordance with the contract of employment unless lawfully varied.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 506 OF 2014
JEREMIAH K. KANDAGOR CLAIMANT
v
MASAAI MARA UNIVERSITY RESPONDENT
JUDGMENT
This Court as recently as 17 July 2015 in the case of Jackson K Berege v Masaai Mara University(2015) eKLR pronounced itself on similar issues as arise in this Cause.
The Respondent gave a notice of retirement to the Claimant on 3 June 2014. The effective date of retirement according to the notice was 30 June 2015. The Claimant was serving at the time of notice as Senior Assistant Registrar (Human Resources).
The notice was predicated on a Circular issued by the Permanent Secretary, Office of the President on 20 March 2009.
The main object of the Circular was to raise the mandatory retirement age within the public sector from 55 years to 60 years.
In the case of the Claimant, the Respondent was purporting to reduce the retirement age from 65 years to 60 years.
This was contrary to expressly agreed contractual age of 65 years as indicated in the Terms of Service for Non-Teaching Staff in the Senior Administrative, Catering, Clerical, Hospital, Library and Technical Categories.
There are some indisputable facts. The variation or lowering of the mandatory retirement age was not discussed with the Claimant or his Union. It was a unilateral variation.
It was also based on, strictu sensu, a Circular by a third party in the employment relationship.
Similarly, it was to the disadvantage of the Claimant.
Because the variation was unilateral and the Claimant objected to it by filing the present Cause, it was unlawful and unfair. A long chain of salutary authorities from comparative jurisdictions have held that for a variation to an employment contract to be valid or lawful, it should be by mutual consent (seeHarlow v Artemis Ltd (2008) IRLR 629, Rigby v Ferodo Ltd(1987) IRLR 516 and Security and Facilities Division v Hayes (2001) IRLR 81).
In my view, the law as expressed in these authorities expresses the correct legal position even in Kenya under our constitutional and statutory framework where employees are protected now from unfair labour practices.
The variation was based on a Circular by a third party. In so far as it sought to affect certain employees adversely, it should have been underpinned by legislation.
Further, although the parties did not allude to this aspect, in my view, it is open to debate, whether the purport and object of the Circular was to reduce the mandatory retirement age where a higher age had been agreed between an employer and employee and if the Circular could be the foundation for the action taken by the Respondent to prematurely retire the Claimant.
The Claimant therefore succeeds and the Court finds and holds that
the notice of retirement dated 3 June 2014 varying the terms of the Claimant’s contract of employment was unlawful and unfair
the Claimant be retained in employment with all the benefits in accordance with the contract of employment unless lawfully varied.
Claimant having succeeded is awarded costs.
Delivered, dated and signed in Nakuru on this 31st day of July 2015.
Radido Stephen
Judge
Appearances
For Claimant Mr. Oumo instructed by Oumo & Co. Advocates
For Respondent Ms. Mogere instructed by S.M. Mogere & Co. Advocates
Court Assistant Nixon