The Employment and Labour Relations Court has ruled that where staff fail to state the retirement age, the employer should use the general retirement age in the public service.
However, the court noted that such should be treated cautiously and brought to the attention of the employee in good time. “There is no permanent employment in law or in fact, each type of employment is terminable due to different aspects including that of attaining a retirement age,” said Justice Monica Mbaru.
Justice Mbaru ruled that unless the employer has caused the employee to register and state the date of birth or month, he or she cannot turn around and assign a date unilaterally.
She said a government circular on retirement — which was relied on in another case — was meant to address the growing need for honesty and certainty in employment by allowing an employee to state the date of birth to give the employer a semblance of certainty regarding the retirement date.
In her judgment on an appeal filed by former security guard Kenneth Ouma, Justice Mbaru said the retirement age at 55 years was amended to 60 years, which has been applied as a best practice over the years.
“It should, however, not be applied erratically and without order where there remain employees whose date of birth or month is not stated,” said Justice Mbaru.
Mr Ouma had sued SGA Mombasa Ltd at the magistrate’s court for retiring him unfairly, arguing that his retirement was illegal and unlawful and no reasons justified the action. The case was dismissed prompting him to appeal.
Justice Mbaru said Mr Ouma’s national identity card gave the year of birth only as 1959 and hence his date of attaining 60 years ought to have been July 1, 2019, and not earlier.
She said that had the issue of his retirement been well addressed, he should have been allowed to serve his employment until July 1, 2019.
“The early retirement without the appellant being taken through the due process was unfair. He was, however, issued with a notice, though prematurely and paid for time worked,” said Justice Mbaru.
The judge added that the lapse from February to July 1, 2019, denied Mr Ouma a fair chance to earn a living and it was an unfair labour practice against him.
Justice Mbaru, for the loss occasioned to Mr Ouma, awarded him Sh101,939 as compensation for a three-month gross wage.
However, she ruled that leave travelling allowance, unexpired term contract for four months and severance pay were all properly analysed by the trial magistrate and the conclusions made cannot be faulted.
The magistrate’s court had ruled that Mr Ouma did not have abnormal procedure leading to the termination of his employment, his prayer for overtime was not justified and that there was no redundancy to justify a claim of severance pay.
