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Ex-Telkom workers get nod to take pay row to Supreme Court
The three former workers were awarded about Sh30 million by the High Court in 2013 for wrongful termination, as anticipatory salary and allowances, but the decision was quashed by the appellate court.
A Sh30 million compensation suit by three former Telkom Kenya staff will now be heard by the Supreme Court.
Three former workers, who were laid off in 1991, convinced the Court of Appeal to allow them to escalate the matter to the apex court.
Francis Waithaka Ngokonyo, Sudi Abdalla, and Andrew Muga successfully argued that the issues they were raising were matters of general public importance that should be revisited, considered, and determined by the Supreme Court.
Justices Daniel Musinga, Fatuma Sichale, and Fred Ochieng said the case by the trio raised substantial issues regarding anticipatory salaries and allowances, in circumstances where employees in the public sector are asked to retire early in the public interest, or for the common good of the government.
“In the result, we certify that this is a matter of general public importance and grant leave to the applicants to appeal to the Supreme Court,” said the judges.
The three former workers were awarded about Sh30 million by the High Court in 2013 for wrongful termination, as anticipatory salary and allowances, but the decision was quashed by the appellate court, saying compensation was not provided for by law.
The retirees joined the company separately then known as Kenya Posts and Telecommunications Corporation in the early 1970s and rose through the ranks up to 1991 when they were terminated in the public interest.
They successfully sued the company and were awarded the money as anticipatory salary and allowances until their respective retirement ages.
However, the decision was set aside by the Court of Appeal.
They submitted that the Supreme Court should use the case to settle conflicting decisions of the court on the issue of rightful commensurate compensation for wrongful and unlawful termination of employees before the 2010 Constitution.
They pointed out that in one of the cases against Kenya Ports Authority, the Court of Appeal awarded employees compensation for salaries and allowances for the remainder of the years they were to work, as opposed to many other decisions made to the contrary.
They added that the apex court should settle the issue of whether under Section 46(1) of the Retirement Benefits Act, the Court of Appeal has no jurisdiction to determine matters relating to the pension of employees.
According to the retirees, the Supreme Court should determine the legal regime in which they qualify for compensation in damages since they were terminated before the new constitution.
Telkom had opposed the case arguing that the applicable law and legal regime for awarding damages for unlawful or unfair termination before the new Constitution and the Employment Act of 2007, were repealed, and the issue was settled.
The company said the fact that there are two conflicting decisions on the issue does not render the law uncertain.
“The issue of whether retirement in the public interest can be legally considered unlawful termination of employment and not a grave disgraceful retirement that would attract commensurate compensation is being raised for the first time and was not determined by the two courts below,” Telkom Kenya submitted.
The company added that there was no need for the Supreme Court to determine the issue of uncertainty in the law of compensation for unlawful termination before the new constitution as the issue was already settled.
