DHL to pay ex-top manager Sh22m for unfair dismissal

“In the circumstances, the court takes the view that the claimant was constructively dismissed and in a manner that amounted to unfair termination,” the judge said.

Mr Hayson was an employee of DHL Kenya from 1998 to 2019, when he was dismissed by the logistics firm after completing a secondment to Oman.

He told the court that DHL Kenya was a subsidiary of the Deutsche Post DHL Group and that his contract of employment stated that he could work for any of the Deutsche Post subsidiary companies spread across the world.

In 2014, Mr Hayson was assigned to Oman as Managing Director of Bahwan Exel LLC, a subsidiary of Deutsche Post DHL Group. His assignment, initially set for one to three years, extended to five years. Upon completing the assignment in 2019, Mr Hayson resigned from the Oman role but expected to be given a new position in Kenya, as per the company’s midterm assignment policy.

He said that the terms of his deployment contract stated that the company would ensure that the claimant’s work permits in Kenya remained valid and up to date. Additionally, the company would facilitate the processing of the claimant’s permanent residency permit in Kenya, allowing him to return to his home country once his assignment ended.

The contract also provided that the company would cover relocation costs back to Kenya, including the transportation of personal belongings and insurance. It would also provide economy-class airfare for the claimant and his family.

The deployment to Oman was intended to be a short- to mid-term assignment, after which the claimant would return once the business in Oman was stabilised.

Mr Hayson told the court that in a letter dated September 11, 2019, Deutsche Post DHL Group unconditionally accepted his request to end the assignment and his resignation from Bahwan Excel LLC in Oman.

However, he said that DHL Kenya and its parent company breached his legitimate expectations and violated his right to fair labour practices by failing to provide him with a suitable position upon his return. He further argued that the company did not pay his terminal dues or cover his relocation costs as per their agreement.

DHL Kenya and Deutsche Post DHL Group denied the claims, arguing that Mr Hayson was not their employee when he took up the role in Oman. They said Mr Hayson’s contract with DHL Kenya ended when he accepted employment with Bahwan Exel LLC in Oman.

The firms further asserted that Mr Hayson had voluntarily resigned from his Oman position and that the company was not obligated to provide him with another job in Kenya. DHL also stated that they had tried to find job opportunities for Mr Hayson in Europe and the UK, but he declined. However, the court found no documentary evidence to support this claim.

Justice Abuodha, however, ruled that Mr Hayson’s employment with DHL Kenya had never been terminated, as there was no mention of his Kenyan contract ending when he took up the Oman assignment. The court held that the company had constructively dismissed Mr Hayson by failing to provide him with a new position or adequately compensating him upon his return to Kenya.

The court also found that DHL Kenya had violated Mr Hayson’s right to fair labour practices under Article 41 of the Constitution by refusing to cater for his relocation costs and not settling his terminal dues.

Justice Abuodha emphasised that Mr Hayson had legitimate expectations that, after completing his assignment in Oman, he would return to his home country and resume his duties with the company.

“Whereas this court notes that this was a peculiar case of secondment where the employee after secondment goes back to the previous employer, the respondents refused to cater for the claimant’s relocation costs and refused to offer him a suitable position in the home country despite him using his own means to relocate,” Justice Abuodha said.