WHEN THE EMPLOYER ENJOYS IMMUNITY TO TERMINATE EMPLOYMENT

WHEN THE EMPLOYER ENJOYS IMMUNITY TO TERMINATE EMPLOYMENT Today we will analyze a recently delivered Judgment from Kenya’s Employment & Labour Courts which highlights the nature of immunity from Court proceedings enjoyed by some intergovernmental organizations. However this immunity is not absolute. It is limited to matters that are intrinsically linked to the daily operations of the organization.

The Petitioner (McNally) was employed by the International Center of Insect Physiology and Ecology (ICIPE) through a letter of Appointment dated 11th February 2004. The contractual terms dictated that the Petitioner’s employment was subject to six months probation period after which her employment would be confirmed.

However, at the end of the six months, a review was done and it showed the petitioner was not capable of meeting the organizations expectations in her role hence its failure to confirm her employment. The Petitioner felt aggrieved by the termination and filed a case in Court challenging the termination. In her petition she stated that it was a complete violation of the Constitution, Employment Act and the respondent’s Employee Manual.

The Petitioner stated that she was employed at professional staff level and was entitled to Housing allowance, security, transport, accident insurance, education, membership in the pension scheme, duty free privileges, economy class air fares, home leave travel once a year, relocation allowance and thirty days paid vacation.

She stated that the performance review was conducted after her probation period was over and the subsequent termination of her services amounted to breach of the contract. She claimed she was not paid her entire dues which rendered her family destitute. She also claimed that her right to privacy was violated when the respondent checked her emails six months after she had left employment as well as subjecting her to a HIV test as a pre condition to employment. She concluded by claiming that the respondent was using unfair labour practices and was using the defence of immunity to avoid Court proceedings.

She sought to have the Court declare that the respondent did not enjoy immunity from court proceedings and that her right to privacy, human dignity, fair labour practices were violated. Further, she wanted the Court to declare that the respondent contravened the Employment Act and as such she was entitled to fourteen months salary for the remaining period of the contract, one year salary and benefits for unlawful termination of employment, relocation allowance, VAT refunds and unlawful deductions all amounting to four hundred and twenty six thousand seven hundred and sixteen US dollars (USD 426,716). Cost and interest of the suit were also prayed for.

On the other hand, the Respondents gave evidence that they enjoyed immunity from court and legal processes by virtue of their constituting charter. It stated that according to the Host Agreement, disputes are to be settled in the manner that is stated in the Human Resource Policy Manual. Further, the Respondent countered that its performance review panel was of the view that the petitioner did not meet the expectations of the position she held thus the termination. It also stated that it went ahead and released all her dues all the same.

The respondent denied asking the petitioner to have a HIV test done and that they did not breach her privacy as the email was an office tool. They further stated that the Human Resource Manual stated that employment can be terminated without notice if employee is absent for more than five working days. The petitioner was absent for seven days. The short delay in conducting the evaluation was due to lack of quorum for some staff members who were absent.

In their submissions, the petitioner’s advocate submitted that the petitioner’s right to labour practices was violated, that the probationary period shall not be more than six months as per the Employment Act and that in the event it does then it can only be extended with Agreement.

The Petitioner submitted that her employment was automatically confirmed in law at the expiry of the probation period. She also claimed that her employment was terminated unfairly. According to her, the respondent was required by the Employment Act to prove reasons for termination. Respondent had an obligation to follow the fair procedure in terminating employment and that a hearing should have been conducted to establish whether the employee had a defence on the ground raised.

She alleged that her right to privacy and dignity protected by the constitution were violated when she was forced to undergo a HIV test as a pre condition to her employment.

On the respondent’s defence of immunity the petitioner submitted that the Employment and Labour Relations Court is mandated to deal with matters fundamental to rights and freedoms as part of its jurisdiction to resolve disputes that arise in employment and labour relations. She relied on the Vienna Convention on Diplomatic Relations that persons enjoying privileges and immunities must respect the law and regulations of the receiving state. She submitted that the convention as well as the privileges and immunities act are subordinate to the constitution and therefore cannot be used as a shield to the court’s power to give relief for breach of any person’s fundamental rights.

The Petitioner claimed that if the respondent purportedly enjoyed immunity as it did, then it could not continue to enjoy orders of the court and it did not recognize its jurisdiction.

The Respondent submitted that it enjoyed immunity by virtue of the ICIPE Charter and the Privileges and Immunities Act as well as the Legal Notice published by the Cabinet Secretary Foreign Affairs. It submitted that the petition was covered by the matters protected by immunity and that the grant of immunity to the respondent did not violate the petitioner’s rights.

The Respondent submitted that the Vienna Convention did not take away any rights alleged by the petitioner but only precludes the court from inquiring into whether those rights have been infringed. It was a procedural bar not a limitation of rights. On the issue of waiver of immunity, the respondent submitted that it had not waived its immunity by submitting itself to the court process. The waiver must be express which was not the case.

The Respondent further countered that it had a right to access the petitioner’s email as it was their property, that a HIV test was not mandatory and was neither a pre condition to employment. Respondent emphasized that it did not violate the Petitioner’s labour rights as the Employee Manual provided that employment could not be confirmed until performance evaluation was done.

That the employment manual provided for payment of one month salary among other benefits. Finally, the Respondent submitted that the petitioner failed to use the internal dispute settlement mechanism it is provided but rather went to Court.

The court opined that there was no dispute as to the petitioner’s employment or the respondent’s immunity. It listed the issues for determination as whether the privilege and immunities were inconsistent with the constitution, whether section 45 of the employment act was inconsistent with the constitution and whether the relief sought in the petition should be granted.

On the first issue the court held that the said immunity is not absolute but restricted to matter which are official and intrinsically linked to the respondent’s operations. Immunity operates as a procedural bar to bringing suits to court unless the respondent expressly waives it which was not the case.

On the second issue, the court held that the specific subsection relied on by the petitioner was declared unconstitutional by Lenaola J as he then was therefore the court saw no need of answering the same.

The court in determining the third issue, held that since it was in agreement that immunity was granted to the respondent and that the same was not waived, the court was procedurally barred from determining the petitioner’s claims. The court however advised that the matter go through the procedure of settlement of dispute outlined in the Host Country Agreement between Kenya and the Respondent. The Petition was dismissed.

Greg Karungo

Partner

Walker Kontos

 20th May 2019