The Employment and Labour Relations Court has found that Kenya Airways (KQ) contravened the law while retiring one of its employees early on medical grounds by not according him a fair hearing.
- •According to court filings, Fredrick Odero Ayuya was employed as a Security Officer through African Cargo Handling Limited from 1999, before being employed by KQ in 2004 as an Equipment Operator.
- •The airline retired him in August 2017, citing a history of chronic back pain dating back to 2012, and a 2016 recommendation from a doctor for lifestyle changes, including lighter duties.
- •The court found that Kenya Airways (KQ) failed to comply with the statutory requirements of a fair process in retiring Ayuya on medical grounds, awarding him compensatory damages equivalent to four months of his salary.
Kenya Airways had argued that Ayuya was placed on lighter duties for a period of over one year but he continued to complain of back pain. Subsequently, he was examined by the Directorate of Occupational Safety and Health Services (DOSH) on 24th April 2017, which recommended that he be retired on medical grounds.
“We informed of the findings of the report and following three personal therapy sessions ending on 5th August 2017, the Claimant was issued with a letter of retirement on medical grounds. He was thereafter paid all his terminal dues,” the airline told the court.
The main issue was whether KQ followed the law when processing the early retirement. Kenya’s employment laws state that an employer should, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity, explain to the employee, in a language the employee understands, the reason for termination. The employee is also entitled to have another employee or a shop floor union representative of his choice present during this explanation.
“In as much as the Respondent had a valid reason to retire the Claimant on medical grounds, the fact that it did not apply the process contemplated under Section 41 of the Employment Act in effecting the said retirement on medical grounds rendered the retirement procedurally unfair,” the court said in its ruling.
