The Procedure to be Followed by an Employer before Retiring an Employee on Medical Grounds

Samuel Langat Tanui v Director General, National Intelligence Service & another [2017] eKLR

Cause No. 15 of 2017

Employment and Labour Relations Court at Eldoret

Radido Stephen,J

December 5, 2017.

Reported by Kakai Toili

Labour law – employment – termination of employment – retirement – retirement on medical grounds - procedure to be followed - what was the procedure to be followed by an employer before retiring an employee on medical grounds – Employment Act,2007, section 41

Brief Facts:

The Claimant was offered employment by the National Security Intelligence Service as an Intelligence Officer through a letter dated July 7, 1999. On March 11, 2002, the Claimant was offered an appointment as NSIS Officer Level 4 by the National Security Intelligence Service on transfer arising from the coming into force of the National Intelligence Service Act.

 The Claimant continued to serve until July 10, 2013 when the 1st Respondent informed him that he was being retired on medical grounds, mainly because he was physically incapacitated and was using a wheel chair and crutches, with effect from August 1, 2013. Aggrieved by the decision the Claimant filed the instant suit.

Issues:

1. What was the procedure to be followed by an employer before retiring an employee on medical grounds?

Relevant Provisions of the Law:

Employment Act, 2007

Section 41 - Notification and hearing before termination on grounds of misconduct.

1. Subject to section 42(1), an employer shall, 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 which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
2. Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

Held:

1. Clause 4.8.4 (c) of the Report of Technical Committee on the Terms and Conditions of Service for the National Security Intelligence Service, June 2009 (Terms and Conditions of Service) on retirement on medical grounds envisaged that the 1^st Respondent would have notified the employee of the intention to retire him on medical grounds and allow him to make representations to the Service Medical Board.
2.  No evidence or record was produced to suggest that the Claimant was notified that the 1^st Respondent intended to retire him on medical grounds and advising him to make representations to the Medical Service Board.
3.  The Service Medical Board met in Nakuru on December 19, 2012 and December 20, 2012, and made a recommendation for the retirement of the Claimant without having received prior representations from him.
4. The Terms and Conditions of Service contemplated the Service Medical Board seeking the opinion of the Director of Medical Services who in turn was expected to convene a Medical Board which would determine whether the employee was unfit to continue in service.
5.  The role of both the Medical Service Board and the Medical Board was to undertake a technical (medical) incapacity enquiry aimed at assessing whether the employee was capable of performing his duties, be it in the position they occupied before the enquiry or in any suitable alternative position.
6. Any conclusion as to the employee's capability or otherwise could only be reached by both Boards once a proper assessment of the employee's condition had been made and after hearing his representations which could include assessments by the employee’s own doctors of choice. The Claimant was not afforded an opportunity to make representations and to present his own medical experts or reports.
7. In terms of the exhibits produced in Court, both the Medical Service Board and the Medical Board met in Nakuru and at the National Spinal Injury Hospital in Nairobi on December 19, 2012, respectively. In practical terms, it was not probable that the Service Medical Service Board met in Nakuru on December 19, 2012 and that the Medical Board also met on the same day in Nairobi to deliberate on the Claimant’s case.
8. The Claimant did not appear before the Medical Board which recommended his retirement on medical grounds. The Claimant was not afforded an opportunity to make representations on the intent to be retired on medical grounds. He was equally not afforded an opportunity to appear before either the Service Medical Board or the Medical Board, contrary to contractual agreement.
9. The Employment Act, 2007(the Act) provided the irreducible minimums to those employees to whom it applied. Section 41 of the Act required that if an employer was contemplating terminating the employment of an employee on account of misconduct, performance or physical incapacity, the employee should have been informed and afforded an opportunity to make representations.
10.  Although not defined in the Act, it was generally agreed in human resource practice that there were three types of incapacity; incapacity due to illness or ill-health, physical disability which could have been temporary or permanent and incapacity due to poor work performance.
11. Physical incapacity did not mean inability to be engaged in productive employment as the Claimant mental faculties were not negatively impacted. The Claimant’s doctor’s medical report noted that he was fully functional except for mobility.
12. The 1^st Respondent was under a statutory obligation to hear out the Claimant on the question of retiring him on the ground of physical incapacity (ill health or medical) grounds as the representations to the Boards were expected to serve a more technical objective. The hearing contemplated by section 41 of the Act was not held nor show cause given, the statutory protection was violated.
13. The Claimant did not lead evidence to demonstrate on which grounds the Respondent discriminated against him. If at all the discrimination related to remuneration and exemption from tax, the evidence presented was that the Claimant registered under the provisions of the Persons with Disabilities Act after the retirement. The Claimant did not prove discrimination to the required standard.
14.  In many instances, the three years provided for in section 12(3) (vii) of the Act on reinstatement lapsed before determination of a dispute not because of the indolence of the Parties but because of the slow wheels of justice and the judicial staff constraints. A party deserving of reinstatement should not have been excluded from the remedy.
15. The National Intelligence Service could not all be about operatives physically roaming gatherings and meetings, the ravines and hills and breadth of the land. It had to as well have had a presence in the blogosphere, the clouds and the like. The intelligence gathered in the field and the clouds had to be synthesised and analysed. It could not be therefore that the 1^st Respondent had practical difficulties in taking the Claimant back.

Claim partially allowed

1. Declaration that the retirement of the Claimant on medical grounds was unfair .
2. The 1^st Respondent to re-engage the Claimant on terms and conditions not less favourable than obtained in August 2013 with effect from December 5, 2017.
3. Costs awarded to the Claimant