Prisca Kemboi & 2 others v Kenya Post Office Savings Bank [2014] eKLR
Petition 38 of 2013
Brief Facts
The Petitioners were all faithfuls of the Seventh Day Adventist (SDA)
Church and employees of the Kenya Post Office Savings Bank, the
Respondent herein. The Seventh Day Adventists ordinarily observed
Saturday as their day of worship. The dispute in the Petition arose from
the requirement by the Respondent that the Petitioners work on
Saturdays. The Petitioners pleaded that at the commencement of their
employment contracts, their adherence to the SDA faith was made known to
the Respondent. Among the fundamental tenets of the SDA faith was the
observance of the hours between sunset on Friday and sunset on Saturday
as a day of worship, also known as the Sabbath. Prior to the dispute
before the Court, the Petitioners had not been required to work on
Saturdays. In order to accommodate the Petitioners, the Respondent had
generally allowed arrangements such as working through the lunch break,
working extra hours in the evenings and on Sundays to compensate for the
half day work hours that the Petitioners did not serve on Saturdays.
However, the Respondent began to compel the Petitioners to work on
Saturdays. The Respondent had also instituted disciplinary proceedings
against the Petitioners on account of failing to report to work on
Saturday. It was the Petitioners' case that the Respondent's actions are
in contravention of their rights and freedoms as guaranteed in the
constitution of Kenya 2010.
Issues
- Whether in requiring the Petitioners to work on Saturdays, the Respondent had violated the Petitioners' rights under Article 32 of the Constitution on rights to freedom of conscience, religion, belief and opinion.
- The extent to which the Petitioners' rights to freedom of conscience, religion, belief and opinion under Articles 32 could be limited
- Whether the Respondents' past conduct amounted to a waiver of its Terms and Conditions of Service and Code of Conduct and operated as an estoppel against the Respondent;
- Whether the right to fair administrative action under Article 47 of the constitution applies in employment relationships in the public sector.
Constitutional Law - fundamental rights
and freedoms - freedom of worship -freedom against discrimination - an
alleged violation of the freedom of worship -an alleged violation of
freedom against discrimination-where an employee is compelled to attend
work on his day of worship-Whether in requiring the Petitioners to work
on Saturdays, the Respondent had violated the Petitioners' rights under
Article 32 of the Constitution on freedom of worship-Constitution of
Kenya, 2010, article 27 and 32; Employment Act, 2007, section 5
Constitutional Law-fundamental rights and
freedoms-freedom of worship-limitation of the freedom of worship-an
alleged violation of the freedom of worship-where an employer imposed
work on the employee’s day of worship-The extent to which the
Petitioners' rights on freedom of worship under Articles 32 could be
limited-what justifications were to be taken into account by an employer
before imposing work duties on an employee’s day of
worship-Constitution of Kenya 2010, article 24
Labour Law-employment law-employment
relationships-disciplinary rules-discipline of employees-who is to
discipline an employee for failure to attend to work on his day of
worship-whether an employer could invoke his administrative disciplinary
proceedings against an employee for a misconduct during worship day
that was on a working day and was not part of the terms and conditions
of service-Whether the right to fair administrative action under Article
47 of the constitution applied in employment relationships in the
public sector.
Estoppel-doctrine of estoppel-meaning of
the doctrine and its application-waiver-meaning and the application of
the doctrine of waiver-dispute-whether by allowing time off on
Saturdays to the petitioners to observe their day of worship, the
Respondent waived its policy and was therefore estopped from demanding
compliance by the Petitioners-Whether the Respondents' past conduct
amounted to a waiver of its Terms and Conditions of Service and Code of
Conduct and operated as an estoppel against the Respondent.
Article 32
- Every person has the right to freedom of conscience, religion, thought, belief and opinion.
- Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.
- A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person's belief or religion.
- A person shall not be compelled to act, or engage in any act, that is contrary to the person's belief or religion.
Held
- Courts were expected to consider the effect of their decisions. That became more crucial in interpreting and enforcing rights under the Constitution. The Court was fully aware and had warned itself of the inherent minefield in adjudicating the dispute in the Petition. The fear expressed by the Respondent that if the Court ruled in favor of the Petitioners, then other employees would follow suit; pilots would refuse to take to the skies, doctors would switch off dialysis machines and chefs would refuse to cook on their respective days of worship. That would definitely result in industrial chaos. Court was called upon to consider every dispute that came before it without succumbing to judicial cowardice. In that spirit, the issues rose in the Petition and had formed the opinion that the Petitioners were seeking enforcement of their individual rights under the Constitution and their respective employment contracts. Those claims lend themselves to adjudication on their own merit.
- Matters of conscience and religion were uniquely personal and for an employer to simply insist that its employees had to report to work on Saturday and therefore ignore their day of worship was to miss the point. Considering the efforts made by the Petitioners to secure their day of worship, including offering to put in extra hours during the week, taking leave and forfeiting salary showed the seriousness which the Petitioners attached to their day of worship.
- Employers had to exercise flexibility in handling staff time off, one had to focus on what got done rather than how many hours employees put in. In light of advancement in technology, employers should have indeed exercised flexibility in working hours in order to accommodate deserving exemptions to human resource policies.
- Managers of institutions had to move from their corner offices to the shop floor and address the unique needs of employees for maximum returns. An employee who was consistently denied the opportunity to observe their day of worship would not be productive. A human resource policy that did not accommodate the unique spiritual needs of employees was unreasonable and it matters not that only a section of employees raised the issue. Nevertheless, employees themselves had to also exercise flexibility and be ready to attend to a sheep or ox that fell into a ditch on the Sabbath. (Mathew 12:11 and Luke 14:5).
- The effect of the Respondent's policy on hours of work was not to just limit the Petitioners rights under article 32 but obliterated them altogether and that flew right in the face of article 24 (2)(c) of the Constitution which prohibited limitations that derogated from the core and essential content of rights and freedoms.
- The Respondent created a legitimate expectation in the Petitioners that they would be granted time off on Saturdays to observe their day of worship. The arrangements thus created became part of the Terms and Conditions of Service of the Petitioners which could not be varied by a general instruction from the Human Resource Department. The Petitioners were allowed time off on Saturdays by their supervisors and the Respondent could not be heard to say that it had no knowledge of that arrangement, there was no evidence that the supervisors and managers involved were found to have done the wrong thing. An employee dealing with a senior official of an organization was not expected to go into the corporate boardroom to confirm whether the official in fact had authority to do what he sought to do. [Michael Mwalo Vs Board of Trustees National Social Security Fund Cause No 1093 of 2012].
- Action taken by an employer against an employee in the Public Sector did not fall within the definition of administrative action under Article 47. That did not however diminish the rights of the employee under the Constitution and applicable labor laws and in the current case; the findings of the Court were not affected by the interpretation accorded to article 47 of the constitution of Kenya 2010.
- The Respondent's actions were in violation of the Petitioners' right to observe their day of worship.
- The Respondent to review its policy on hours of work in order to accommodate the Petitioners' right to observe their day of worship on Saturday within acceptable limitations;
- Respondent by its managers, supervisors, employees and/or agents restrained from taking any disciplinary action against the Petitioners on account of their observing Saturday as a day of worship;
- The Respondent shall meet the costs of this Petition.
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