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ELRCPartially AllowedCause No. 68 of 2015· [2015] KEELRC 45 (KLR)

Rachel Carol Atamba v Masinde Muliro Unversity of Science & Technology [2015] KEELRC 45 (KLR)

Employment and Labour Relations Court
17 December 2015
2,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a university employee wasn't fired but was hurt by poor communication, awarding her Kshs 500,000 and demanding her redeployment.

What this practically means

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Executive summary

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The Claimant, Registrar (Administration) of Masinde Muliro University of Science & Technology, sued after the Respondent advertised her position (with new PhD qualification requirements) as part of a restructuring and directed her to proceed on accumulated leave while an Acting Registrar was appointed. She claimed unfair and unlawful termination and constructive redundancy contrary to Sections 40, 41 and 43 of the Employment Act, and violations of Articles 28, 29 and 41 of the Constitution, seeking declarations, an injunction, reinstatement and damages. The Respondent denied any termination, asserting a lawful restructuring and managerial prerogative to redeploy. The court framed three issues: whether the Claimant had been terminated or declared redundant; whether her rights under Articles 28, 29 and 41 were violated; and whether she was entitled to the reliefs sought. It found no termination or redundancy, since the employment relationship subsisted and the Claimant remained on payroll. However, it held that the Respondent's failure to officially inform her of the changes to her position before advertising it infringed her rights under Articles 28 and 41, citing Section 10(5) of the Employment Act on material changes requiring written notification. The declaration of unlawful termination, the injunction and reinstatement were refused, the court holding that an employer may not be restrained from lawful administrative changes. The court ordered immediate redeployment as head of department without reduction of rank, remuneration or allowances, awarded general damages of Kshs 500,000 for infringement of dignity and psychological suffering, and awarded the Claimant costs.

Key legal issues

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01

Whether the Claimant had been unlawfully terminated or declared redundant

Holding

No - the employment relationship still subsists; the Claimant remained on the payroll and on accumulated leave, so the claim of dismissal/redundancy was dismissed

Reasoning

The court reasoned that both termination and redundancy sever the employment relationship. Here the Claimant was still on the payroll, still employed, and on accumulated annual leave. The Vice Chancellor's letter directed her to take leave and stated new duties would be assigned on return. An employer may lawfully move, relocate and redeploy an employee. There was therefore no evidence of termination or redundancy.

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02

Whether the Respondent violated the Claimant's rights under Articles 28, 29 and 41

Holding

Yes, in part - the failure to officially inform her of changes to her position before it was advertised infringed her rights under Articles 28 and 41

Reasoning

It was undisputed that the Claimant received no official communication of her removal from the office of Registrar (Administration) and was not told her new position before suit or by hearing. Such changes are material terms requiring written notification under Section 10(5) of the Employment Act. The resulting uncertainty and anxiety infringed her dignity and right to fair labour practices. No finding was made under Article 29.

p. 5
03

Whether the Claimant was entitled to the prayers sought

Holding

Only partially - general damages of Ksh. 500,000 awarded and an order to redeploy her as head of department without loss of rank or remuneration; declarations, injunction and reinstatement refused

Reasoning

Because employment had not been terminated, the declaration of unlawful termination and the injunction failed. Reinstatement was refused because the Respondent was implementing lawful qualification requirements. However, the Respondent mismanaged the transition, inflicting avoidable pain and psychological torture, justifying general damages and an order for redeployment without reduction of rank, remuneration or allowances.

p. 5

Legal principles established

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  • Changes in an employee's terms, including change of designation, are material changes that must be communicated to the employee in writing in consultation with the employee, as required by Section 10(5) of the Employment Act
  • An employee should not be subjected to uncertainty and anxiety about her position; failure to communicate changes amounts to unfair treatment infringing the right to fair labour practices and human dignity
  • Both termination and redundancy sever the employment relationship; where employment subsists and the employee remains on the payroll, there is no termination or redundancy

Court orders

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  1. 1.Claimant's employment not terminated and no threat of termination found; claim of unfair termination/redundancy dismissed
  2. 2.Found that the Respondent infringed the Claimant's rights under Articles 28 and 41 by failing to officially inform her of changes to her position before it was advertised
  3. 3.Declined to order reinstatement of the Claimant to the position of Registrar (Administration)
  4. 4.Directed the Respondent to immediately redeploy the Claimant to the position of head of department without reduction of rank, remuneration or allowances
  5. 5.Awarded general damages of Ksh. 500,000 for infringement of the right to human dignity and psychological torture
  6. 6.Respondent to pay the Claimant's costs of the suit
Jurisdiction invoked
Employment and labour relations jurisdiction (Article 41 of the Constitution; Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rachel Carol Atamba v Masinde Muliro Unversity of Science & Technology [2015] KEELRC 45 (KLR)", Case Analysis (2015). Cause No. 68 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/45/eng@2015-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.