An internal auditor who was forced to retire two years before his time due to an error on his national identity card has won back his job with the National Social Security Fund(NSSF) following an order by the Employment and Labour Relations Court.
Julius Miheso Atisiaya was pushed out and retired from the NSSF on December 10, 2022, after allegedly clocking the age of 60 — which is the official retirement age for civil servants.
Court filings showed that the NSSF based its decision to retire Mr Atisiaya on a dateline on an ID he presented during his employment in August 1998.
According to the NSSF, the document showed that Mr Atisiaya was born on September 5, 1962 hence he had attained the retirement age by December last year.
Mr Atisiaya, however, maintained that the date on his ID was erroneous and that he had unsuccessfully petitioned and even sworn an affidavit to the Registrar of Persons office to change it to September 5, 1965, as stated in his official birth certificate.
The auditor said the erroneous date of birth was introduced when took up a new generation ID card and reached out to the Principal Registrar of Persons to have it amended.
In a judgement, Justice Jacob Gakeri of the Employment and Labour Relations Court said NSSF failed to crosscheck Mr Atisiaya’s other documents including his birth certificate to ascertain his actual age.
“The court is alive to the fact that the petitioner should have had the misrepresentation on his Identity Card rectified to obviate future challenges such as the instant one,” the Judge said.
“However, the court is not persuaded that he should be penalized for not having done so. The fact that he swore an affidavit about one month after the new generation Identity Card was issued suffices.”
Justice Gakeri said that NSSF terminated Mr Atisiaya’s employment in contravention of the provisions of the Employment Act, 2007 as it had no substantive justification for the termination and did not conduct it per a fair procedure.
“In the court’s view, the respondent should have served a notice on the petitioner expressing its intention to retire him as it is apparent that the 1st respondent was unaware of the anomaly on the date of birth. The manner in which it dealt with the petitioner’s matter is discreditable” the Judge said.
“For the foregoing reasons, it is the finding of the court that the petitioner has demonstrated on a balance of probabilities that he was unfairly retired by the 1st Respondent” he added.
Dr Gakeri noted that Mr Atisiaya had served NSSF for 24 years and two months without misconduct and anticipated staying in employment until 2025.
“Finally, since the petitioner is above 55 years old, the chances of procuring comparable employment are non-existent. For the foregoing reasons, the court is satisfied that since the petitioner has been out of employment for only 10 months, the remedy of reinstatement is not only reasonable but practicable and it is accordingly granted,” the Judge said and ordered for Mr Atisiaya’s reinstated to office with full dues and benefits.
