Employment court ruling ends retirement age cheating

Employers to use the general retirement age in the public service after court ruling in a bid to end retirement age cheating.

The Employment and Labour Relations Court has ruled that employers have to apply the normal retirement age in the public service when employees refuse to disclose their retirement age.

The court did point out that such should be handled with caution and promptly brought to the employee’s attention.

“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.

According to Justice Mbaru, an employer cannot make an arbitrary date assignment for an employee unless the employer has made the employee register and indicate the date of birth or month.

She said that a government retirement circular, which was cited in another case, was intended to address the growing demand for honesty and clarity in the workplace by allowing an employee to identify their date of birth in order to provide the employer with some level of assurance on the retirement date.

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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.

At the magistrate’s court, Mr. Ouma had filed a lawsuit against SGA Mombasa Ltd., alleging that the company had retired him unfairly and without cause. After the case was dismissed, he decided to appeal.

According to Justice Mbaru, Mr. Ouma’s national identity card only listed his year of birth as 1959; as a result, his 60th birthday should have fallen on July 1 of 2019 and not earlier.

She claimed that if the matter of his retirement had been properly handled, he ought to 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.

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