Judge shields workers from transfers away from families

Teachers from the Pokot community working in Trans-Nzoia County demand to be transferred back to their home county. [File, Standard]

Workers raising families have a reason to smile in the New Year after the Employment and Labour Relations Court ordered employers to safeguard their rights, particularly regarding transfers.

Justice Byrum Ongaya ordered that his judgment be served to the Labour Cabinet Secretary, the Central Organisation of Trade Unions, the Federation of Kenya Employers, the National Police Service Commission, and the Public Service Commission, so as to protect the rights of workers with family responsibilities.

The biggest beneficiaries of the judgment are teachers and police officers.

The Teachers Service Commission had been at loggerheads with unions over its delocalisation programme.

At the same time, police officers transfers have also raised concerns, with the National Police Service (NPS) being accused of favouritism and using the programme to punish officers by deploying them to hardship areas.

Now, the new headache for employers will be balancing the need to move employees from one workstation to another while factoring in family dynamics, such as children with disabilities, sicknesses in families, and issues like children’s education.

The judge was determining a case filed by senior Directorate of Criminal Investigations officer Inspector Isaac Kirimi, who was transferred from Nairobi to Lokitaung, a station 600 km from the city.

Justice Ongaya quashed the transfer and ordered that the National Police Service Commission (NPSC) to always factor in the needs of his child first whenever it wanted to move him from one station to another.

The judge also ordered the Attorney General to come up with a policy that regulates the transfer and other rights of police officers whose dependents are suffering from extreme physical and cognitive disabilities and other family responsibilities.

“The court holds that the respondents and all employers ought to take necessary steps to ensure that male and female workers with family responsibilities are adequately protected against discrimination and unfair treatment in policy and practice. Such discrimination must be met with adequate compensation for victims,” said Justice Ongaya.

He said the Ministry of Labour and Social Protection, employers’ organisations, and workers’ organisations should prioritise policies, laws, practices, terms, and conditions that protect the rights of working men and women with family responsibilities

According to the judge, the ministry and its officers should report statistics on workers who may be suffering discrimination and mistreatment.

In the case, Kirimi lamented that his employer knew that he had a minor who required constant check-ups, special schooling, and close parental attention that required him to remain within Nairobi.

He told the court that after the minor was diagnosed in 2022, doctors recommended he should be transferred to provide the child with proper care.

At the time, Kirimi said he was stationed in Hulugho, Garissa County. He applied to be moved to the DCI Embakasi following a report by the DCI clinical officers.

Kirimi told the court that he was, however, transferred three times in two years.

He moved to court after he was transferred to Lokitaung on September 29, 2024.

His internal appeal challenging the transfer was rejected on October 14, 2024.

The officer further said his employer had also cut short his education. He said he had enrolled for a Bachelor of Laws at the University of Nairobi.

He stated that his superiors required him to move to Lokitaung within three days, despite knowing that the area had no special facilities for his child and that he needed to complete his education.

His wife supported the case, saying the NPS had violated the minor’s rights to parental care, protection from abuse, neglect, inhuman treatment, and basic nutrition, shelter, and healthcare.

In addition, she argued that the transfer indirectly contravened their child’s right to be treated with dignity, his right to education, and his right to access materials and devices vital for overcoming constraints arising from his condition.
NPSC opposed the case.

It argued that Kirimi was transferred to Lokitaung by the police’s standing orders.

According to the commission, all officers other than the Inspector General of Police, Deputy Inspector General of Police, and Director of Criminal Investigations can be transferred to work anywhere in the country.

It also claimed that the DCI had, on September 2, 2024, received a complaint from a member of the public that Kirimi had allegedly intimidated a complainant into withdrawing a civil case.

The commission claimed that a decision was made to transfer him outside Nairobi to protect the witness and conduct fair investigations.

It argued that he had failed to disclose to the court that he had been adversely mentioned.

The DCI filed its response through the AG.

NPSC argued that Kirimi had agreed to be deployed to any part of the country when he was employed.

The DCI said it informed Kirimi of the complaints against him, but he allegedly refused to cooperate with the investigating officer.

The agency also argued that Kirimi used his child’s medical history to avoid the transfer.

It argued that evidence in court showed his child was last taken ill in 2022, when he was hospitalised.

It asserted that there was no evidence from a doctor that the minor required special care.

On education, DCI argued that an officer’s work always comes first.

In his further reply, Kirimi said he was victimised and removed from the duty rota after the court temporarily stopped the transfer.

He said he was subjected to a disciplinary process in a record three days.

The officer also denied claims of intimidating a witness, adding that DCI officers investigated him on a fictitious claim without providing any evidence to show he had either received a bribe or intimidated a witness.

Kirimi further denied being adversely mentioned in a civil case.

The officer argued that his employer had failed to distinguish his child’s condition.

He said his wife was also lactating and that the NPS had approved his return to class.

After considering the submissions, Justice Ongaya said it was unfair for the NPS to approve his educational pursuit and then turn around without justification.

“It must be whimsical and unreasonable for an employer to make such an approval and proceed to make avoidable decisions that undermine the approval granted to the worker. The court finds the impugned transfer in contravention of the first petitioner’s right to fair administrative action, per section 47 of the Constitution of 2010, and further as amounting to unfair labour practices in contravention of Article 41 of the Constitution,” he said.

At the same time, the judge said that the minor’s best interests were central to the case.

He said Kirimi had proved he had a special parental responsibility that needed to be factored in.