posted 30 Jul 2015, 10:57 by Gerry Kangalee   [ updated 30 Jul 2015, 11:01 ]



 The Employers Consultative Association (ECA) recently published an article in the Newsday of Thursday July 16th 2015. The ECA argued that in cases of compensation for unfair dismissal employers were at a disadvantage because the court can award from zero to infinity. The employers’ organisation called for legislation to restrict the power of the court to determine remedial action for unfair dismissal. 

The ECA called for legislation which stipulates remedies for wrongful dismissal and unfair termination. It cites the Kenyan Industrial Court which may reinstate, re-engage the worker, and/or pay compensation to a worker up to a maximum of 12 months wages. 

The ECA statement ends: “a company executive should be able to determine what is the likely compensation, thereby enabling him/her to take calculated action as to whether the matter should be settled or pursued in the Industrial Court. It is respectfully submitted therefore that in the interest of the community as a whole in which the employer is looked upon to provide growth through the creation of jobs, a remedial structure along the line of that provided by the Kenyan legislation would be most welcome in this jurisdiction”

Dave Smith, General Secretary of the National Workers Union, commented that “a basic principle in civil disputes is that the winning party should, where possible, be put back into a position that they would have been before the offending action took place. if the employers can calculate in advance their maximum liability, then they can work out how much it would cost to arbitrarily dismissal "troublesome" (i.e. trade union) workers.”

Jason Brown (see picture), Executive Officer and Labour Relations Officer of the Banking Insurance and General Workers Union (BIGWU) commented as follows:

“It has long been my view that the principle which the ECA is standing on here has been serving them well since my interest developed in this area some eight years ago. The general rule of thumb is that the Court structures compensation around service in the main.

Using the one month salary for one year service and a possible add on for exemplary damages, employers have been doing exactly what they suggested above, i.e. “calculating” the likely cost to the business for a dismissal that is based on the corporate ego rather than for cause. They also have the added sweetener that such cost will undoubtedly be deferred by a dispute resolution system that guarantees years of relief to the offending party. 

Another such example is the awards granted for unfair dismissals during the probationary period. There seems to be “value for the period of probation” calculation being employed by the Court and has therefore given the necessary confidence to employers to continue without regard to process since it’s a “cheap” cost to bear. Our Comrade Don Devenish (Executive Officer of BIGWU) has recently however crushed First Citizens Bank with a $250,000 award for a unfair dismissal while on probation.

Judgements like these are absolutely necessary if only to be sufficiently punitive to ensure that proper process is adhered to in a meaningful way ( i.e. not cosmetic) to give workers a fair chance.

If I am to be totally objective, then I ask these question of the Court and the ECA: why hasn’t the quantity (overall) and frequency (repeat offenders) of harsh and oppressive dismissals been reduced to a trickle in the system, especially if we consider that the Industrial Court has been at it (delivering judgement after judgement)  for the past forty plus years?

 Why hasn’t the Court instituted a system of “progressive discipline” for the employer who despite the availability of Human Resource and Industrial Relations expertise continues to offend /not learn from their same ‘mistakes’? Why is it that the numbers of matters are progressively increasing each year, so much so that matters are being already scheduled for March 2016 since June 2015?

 My view is the “system” is being abused by employers for their benefit, i.e.  to dismiss without cause/process today and pay what they have already deemed as affordable much, much later.    Zero to infinity seems a fair range in circumstances such as these. “