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Introduction

According to press reports, on 7th November 2017, the Employment & Labour Relations Court ordered Kenya Airways to reinstate Alex Mbugua to the position of Finance Director, the court having found his termination to have been unfair on the basis that he was not given a disciplinary hearing prior to termination. The reinstatement came with back pay for the time out of employment. KQ was given the option of paying him three (3) years’ salary as opposed to reinstatement.

This post addresses the legal position in Kenya regarding the remedy of reinstatement.

The Statutory position

home-2098115__340Reinstatement is provided as a remedy for unfair termination in Section 49(3) of the Employment Act, 2007.  In practice, most claimants in unfair dismissal cases seek damages, not reinstatement. There are many reasons for this, including: –

  1. Damaged work relationships;
  2. The desire to move on;
  3. The historical legal position that reinstatement should only be awarded in exceptional circumstances. The rationale being that employment relationships are personal and should not be forced through court orders. Reinstatement of senior employees was especially frowned upon because of the significance of their roles whereas reinstatement of junior/subordinate staff could be considered.

According to Section 49(4), a court is required to take several factors into account in determining whether or not reinstatement is appropriate, these include:-

  1. The wishes of the employee (most do not seek reinstatement);
  2. The circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination;
  3. The practicability of recommending reinstatement or re-engagement (this is key);
  4. The common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;
  5. The employee’s length of service with the employer;
  6. The opportunities available to the employee for securing comparable or suitable employment with another employer (the harder it is to secure alternative employment, the higher the chances of succeeding in a claim for reinstatement);
  7. The value of any severance payable in law (according to newspaper reports, the Court, in Alex Mbugua’s case, found that damages was not a sufficient remedy).

According to Section 12(3) of the Employment & Industrial Court Act, 2011, reinstatement should only be considered where judgment is given within three (3) years of the termination.

In light of the above, was reinstatement an appropriate remedy in Alex Mbugua’s case? I think not, my reasons are: –

  1. The nature of the position of Finance Director which (i) impacts on the practicality of reinstating such a senior employee (ii) issues of trust and confidence;
  2. The questions surrounding his integrity and competence – according to newspaper reports, the Court agreed that KQ had raised reasonable arguments to justify dismissing him. Though the Court went on to say that the reasons were not sufficient to justify termination, surely the balance of convenience tilts in favour of the company in the totality of the circumstances surrounding KQ;
  3. Comparable employment is available to mitigate his damage;
  4. The remedy of damages is sufficient.

men-1979261__340Reinstatement before hearing of the case

Reinstatement is possible pending hearing of a case but not before giving the employer a chance to be heard – this recently happened in the case filed by KQ’s engineers and technicians. Reinstatement in such circumstances is ordered in exceptional cases. In the KQ engineers and technicians case, the Court ordered reinstatement as a matter of public interest in light of concerns that were raised as to the safety of the aircrafts in the absence of such a significant number of technical staff.

*THE END*

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About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

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