Job Description
By Perminus Wainaina,
The incident below highlights the importance of maintaining accurate and fair HR practices within an organization. It is a reminder that neglecting proper employee management can lead to legal disputes, tarnishing a company’s reputation, and incurring significant financial losses.
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Airport catering services operator Nas has been ordered to pay its former Mombasa unit manager Sh5.7 million as salary deductions for two years and unpaid leave clays while he was on contractual employment.
The Employment and Labour Relations Court also awarded Mr Paul Krijnen interest on the amount, to be calculated at court rates from the date of filing of the case until payment in full.
Justice Agnes Nzei sitting in Mombasa, ruled that Nas Airport Services Ltd, an onsite airport catering company, did not show that Mr Krijnen consented to these salary cuts.
The court said salary payments are a crucial term of each job contract.
“Section 10(5) of the Employment Act provides that where any matter prescribed in the section changes, the employer shall in consultation with the employee, revise the contract to reflect the change and notify the employee in writing,” said Justice Nzei.
The judge said the claimant’s (Mr Krijnen) contract was not shown to have been revised to reflect the reduction of his salary.
“I find and hold that the salary reduction was unlawfully done and that the reduction, which continued until March 2020, was in the form of a continuing injury as contemplated in Section 90 of the Employment Act,” said Justice Nzei.
The court further noted that the “consultancy” agreement dated December 18, 2019, and signed by the claimant on December 19, commencing on January 1, 2020, and ending on August 31, 2020, was a contract of employment and not a consultancy agreement.
“The contract clearly stated the wide scope of the claimant’s duties, put him on the net salary that he had all along earned and also under total control of the respondent,” said Justice Nzei.
The court also ruled that there existed an employer/employee relationship between Mr Krijnen and Nas Airport Services Ltd when the company terminated his job contract.
Justice Nzei ruled that an employer cannot abdicate his contractual obligations by using the term consultant or consultancy in the contract of employment and also by failing to issue an itemised pay statement under the Employment Act, instead asking the employee to issue an invoice before being paid his salary.
Before his contract was terminated
The court noted that Mr Krijnen, who had worked for the respondent on contracts since January 2011 was not shown to have been given notice of termination pursuant to the Employment Act or an opportunity to be heard before his contract was terminated.
“Terminating an employee’s employment without notice and without giving him an opportunity to be heard is not only unfair but goes against the principles of justice and equity provided in the Employment Act,” said Justice Nzei.
Though the court declared that the termination of the claimant’s employment was unfair, it noted that his statement of claim did not contain a prayer for an award of compensation for unfair termination of employment.
Mr Krijnen had told the court that he carried out his duties until 2010 when the respondent retired him upon attaining the age of 55 but was immediately re-hired purportedly as an independent contractor still performing the same job.
He told the court that from 2010 up to and including 2019 the company repeatedly rolled over the independent contracts with the same terms and conditions every year and that in 2020 it purported to rehire him on an eight-month contract.
The claimant said that on March 23, 2020, the respondent, without any notice, decided to terminate his employment and that the termination was illegal, unlawful, and without any justification or reason.
Nas Airport Services said Mr Krijnen ‘s return was as a consultant/independent contractor as per the consultancy appointment letter dated December 18, 2019, pursuant to which he submitted consultancy invoices for payment.
It said that the claimant’s consultancy agreement was terminated at the onset of Covid-19 and he was paid the equivalent of three months’ salary.
Article Courtesy; Nation Media Group
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