Hayson v Dhl Supply Chain Kenya Ltd & another (Cause E417 of 2020) [2024] KEELRC 2188 (KLR)
The bottom line
#A Kenyan court awarded a former DHL executive 12 months' salary because his employer left him stranded after an overseas secondment ended without a job or proper termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly terminated
The Claimant was constructively dismissed and unfairly terminated; his Kenyan contract was never terminated when he went on the midterm assignment
The court found the claimant remained an employee of the 1st Respondent while on assignment in Oman. His Kenyan contract was never terminated, no terminal dues were paid, and the Respondents failed to offer a comparable position or process termination under Kenyan law upon expiry of the assignment. Reliance on alleged declined job offers was unsupported by documents. This conduct amounted to constructive dismissal and unfair termination.
Whether legitimate expectation and fair labour rights were infringed
Yes; the Claimant's legitimate expectation of a comparable position or lawful termination with dues was breached, constituting unfair labour practices under Article 41
Under the Midterm Assignment policy the Claimant was entitled on ending the Oman assignment to return to Kenya and be given a similar or comparable position, or have his contract lawfully terminated with dues. The Respondents acknowledged his relocation distress by email of 7th October 2019 but refused relocation costs and failed to maintain his work permit. This breached legitimate expectation and amounted to unfair labour practice under Article 41.
Whether the Claimant is entitled to the reliefs sought
Partially; maximum 12 months' compensation under section 49(4) of the Employment Act awarded, with certificate of service and costs; reinstatement, special damages and prospective salary refused
Reinstatement was time-barred after more than two years. Special damages failed as duplicative of the Oman award. Prospective salary and benefits failed because employment contracts can end for reasons other than termination, and section 49 of the Employment Act governs damages. The Claimant's over 20 years of service and unlawful termination justified the maximum 12 months' compensation.
Legal principles established
#- Secondment does not terminate the employee's underlying contract; on termination of a midterm assignment the home-country employer must offer a comparable position or lawfully terminate with dues
- An employer who has no suitable position for a returning secondee must terminate in accordance with employment laws; failure to do so amounts to constructive dismissal
Court orders
#- 1.Award of 12 months' salary as compensation for unfair termination of Kshs 22,222,812/=
- 2.Certificate of service to be issued if not already issued
- 3.Costs of the suit to the Claimant
- 4.Award subject to taxes and statutory deductions where applicable, with interest from date of judgment until payment in full
- Jurisdiction invoked
- Article 41 of the Constitution; Employment and Labour Relations Court jurisdiction (preliminary objection on jurisdiction previously ruled upon by this Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayson v Dhl Supply Chain Kenya Ltd & another (Cause E417 of 2020) [2024] KEELRC 2188 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi), judgment delivered 6th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2188/eng@2024-09-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.