How not consulting before changing the terms of employment can be detrimental
1 year ago
On 31st March 2017, Justice Ndolo of the Employment and Labour Relations Court entered judgment in favour of an employee in a claim for various reliefs arising from an unlawful termination.
The case is that of Daniel Njuguna Mwangi v De La Rue Currency and Security Print Limited, Cause 532 of 2014.
The employee was employed in 1993 and he used to be paid overtime for time worked in excess of his normal working hours. In 2013, the company changed its policies, job groups and salary bands and from then on, the employee was no to longer receive monetary compensation for overtime but would instead be given time off. There is no evidence that the employer consulted the employer prior to effecting the changes as mandated in Section 10(5) of the Employment Act. The employee was dismissed for refusing to work overtime, which overtime he was not going to receive any monetary compensation.
The judge upheld the provisions on Section 10(5) and found that the unilateral changes to the contract were unlawful. The company should have consulted the employee before making the changes and the employee ought to have been issued with a written notification of the changes. The termination which was based on the unlawful changes was, therefore, unfair and the employee was awarded damages.
In the final submissions filed on behalf of the Claimant, reference was made to Sections 10(5) and 13(1) of the Employment Act, 2007 which require the employer to first consult with the employee on any changes to the terms of employment and second, to notify the employee of those changes in writing.
The Respondent produced some power point presentation on the Salary Banding but there was no evidence of any consultations made with the Claimant, much less any notification of the changes to his terms of employment. That said I must find that the Respondent’s decision to discontinue payment of overtime compensation to the Claimant was not only unilateral but also unlawful.
Indeed as held by Radido J in James Ang’awa Atanda and 10 others v Judicial Service Commission  eKLR unilateral variation of terms of employment by an employer is an unfair labour practice as contemplated under Article 41(1) of the Constitution of Kenya, 2010.
The logical conclusion is that since the instruction to work overtime without monetary compensation was itself unlawful, no charge based on it could stand. There was therefore no reason for the termination of the Claimant’s employment and the ensuing disciplinary process had no leg to stand on.
Read the full case here http://kenyalaw.org/caselaw/cases/view/133858/.
We tackled this topic extensively in a previous article which you should read https://kenyaemploymentlaw.com/2016/03/16/are-unilateral-changes-to-an-employment-contract-legal/.
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