DHL to pay former CEO Sh22 million for unfair dismissal

“In these circumstances, the court finds that the claimant was constructively dismissed and in a manner which amounted to unfair dismissal,” the judge said.

Mr Hayson was an employee of DHL Kenya from 1998 until 2019 when he was retrenched by the logistics company after completing a secondment to Oman.

He told the court that DHL Kenya was a subsidiary of Deutsche Post DHL Group and that his employment contract stipulated that he could work for any Deutsche Post subsidiary worldwide.

In 2014, Mr. Hayson was posted to Oman as Managing Director of Bahwan Exel LLC, a subsidiary of Deutsche Post DHL Group. His assignment, initially scheduled for one to three years, was extended to five years. At the end of his assignment in 2019, Mr. Hayson resigned from his position in Oman but expected to be assigned a new position in Kenya, in line with the company’s mid-term assignment policy.

He said the terms of his deployment contract stipulated that the company would ensure that the applicant’s work permits in Kenya remained valid and up to date. In addition, the company would facilitate the processing of the applicant’s permanent residency permit in Kenya, allowing him to return to his home country once his assignment was over.

The contract also provided that the company would cover the cost of relocation to Kenya, including transportation of personal effects and insurance. It would also provide an economy class airfare to the applicant and his family.

The deployment to Oman was intended to be a short to medium term assignment, after which the applicant would return once the business in Oman had stabilised.

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

However, he said DHL Kenya and its parent company had betrayed 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 had failed to pay his terminal dues or cover his relocation costs as stipulated in their agreement.

DHL Kenya and Deutsche Post DHL Group have denied the allegations, saying Mr Hayson was not their employee when he took up his position in Oman. They said Mr Hayson’s contract with DHL Kenya ended when he took a job with Bahwan Exel LLC in Oman.

The companies also claimed that Mr Hayson had voluntarily resigned from his position in Oman and that the company was not obliged to provide him with alternative employment in Kenya. DHL also said it had tried to find employment opportunities for Mr Hayson in Europe and the UK, but that he had refused. 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 the end of his Kenyan contract when he took up his post in Oman. The court found that the company had constructively dismissed Mr Hayson by failing to provide him with a new position or adequately compensate him upon his return to Kenya.

The court also found that DHL Kenya had violated Mr Hayson’s right to fair labour practices under section 41 of the Constitution by refusing to cover his relocation costs and failing to pay his terminal dues.

Judge Abuodha stressed 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.

“While this court notes that this was a special case of secondment where the employee, after his secondment, returns to his previous employer, the defendants refused to bear the relocation costs of the plaintiff and refused to offer him a suitable position in his home country despite the fact that he used his own means to relocate,” Justice Abuodha said.