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The Employment and Labour Relations Court has ordered two counties that had declined to absorb nurses previously hired under the Economic Stimulus Programme (ESP), to do so and backdate their pension to February 11 last year.
Labour Court Judge Stephen Radido directed that Siaya and Trans Nzoia counties should fulfill the resolutions made between the National Government and the counties by ensuring nurses are absorbed on permanent basis.
The National Government had brokered a deal with the counties last year where they were to take up health workers employed under ESP after their term ended.
However, the Council of Governors (CoG) who were also defendants in the case disputed that the deal had a legal effect if they failed to honour it.
But Judge Radido said the counties could not run away from the resolutions, adding that two third of the counties had agreed to the proposal.
“The CoG is a statutory creature. It participated in consultations of February 11, 2015 where certain resolutions were reached. By participating in the consultations and agreeing to the resolutions, its members must be bound by those resolutions. CoG cannot run away or disown resolutions to which it was party to and where it was representing the interests of the counties,” Judge Radido ruled.
Giving the order, the judge said it would be unfair labour practice for the counties to treat ESP nurses differently by denying them permanent and pensionable terms of service.
In the case, Kenya union of Nurses told the court that Health Cabinet Secretary had directed the Governor Peter Munya-led council to issue circulars to counties that had not yet absorbed the nurses, but the council ignored the directive.
According to the union, the fact that other counties had absorbed the ESP staff meant that the counties, which had failed, were guilty of discrimination in view of section 5 of the Employment Act, 2007.
The union also contended that failure to absorb the ESP staff was in violation of Articles 27 and 41 of the Constitution and section 138 of the County Governments Act.
But the CoG and the two counties opposed the case, arguing that such directives run contrary to the Constitution and the counties cannot be compelled to absorb the ESP staff. The court heard that the counties were never consulted before the resolution was passed.
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