Unionised workers, who were this week laid off by the Nairobi Hospital, had attempted to stop their sacking at the Labour Court.
The workers, who are among more than 200 staffers dismissed by the hospital, filed the case through the Kenya Union Of Domestic Hotels Educational Institutions Hospitals & Allied Workers (Kudheiha), their union.
In court documents seen by this writer, the union had protested notices from the hospital’s management dated March 24 and March 10 notifying the staffers of a restructuring process and imminent loss of jobs in some departments.
“In response to the emerging business environment, the Board of Management has approved a new organization structure that is focused on our core areas of the business. We are embarking on a restructuring aimed at achieving a balance in our skills needs, based on the demand of our clients. This will entail increasing the number of key staff in the Clinical and Nursing divisions and reducing staff in the non-clinical departments,” the hospital’s Chief Executive Officer (CEO) James Nyamongo said in the memo dated March 24.
The workers sought the Employment and Labour Relations Court’s orders to stop the redundancy exercise they argued was disguised as a restructuring move by the hospital.
In the memo, Nyamongo had indicated that the management was working on details of the positions and numbers affected by the staff rationalization exercise.
He said the staffers would be informed as “more details are available”.
“The key criterion to be used in the identification of staff affected in this process will be their fit in the revised organisation structures, based on their skills and experience, standard of work performance, displayed work initiative and respective competencies defined for the different roles in the organisation design. The exercise, scheduled to be completed in May 2021, will cover both unionisable and non-unionisable staff cadres,” the memo read.
The union told the court that the management had cited reduced revenue as reason for the layoffs, an excuse they dismissed.
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The court heard that the respondent has been experiencing a shortage of beds for admission of beds due to the rise in the number of patients being admitted over Covid-19 yet falsely claimed experiencing a shrink in business.
The union said the hospital was using the excuse to lay off certain targeted employees and employ certain persons of their choice.
According to the union, the “unprocedural” layoffs would cause its members’ serious financial embarrassment, loss of employment, loss of source of livelihood and further result in a miscarriage of justice.
The hospital, however, dismissed the union’s claims saying whereas the number of Covid-19 patients being admitted was high, that was not the case in other wards.
The management argued that the suit was premature and asked the court to allow the restructuring exercise to continue as the memo cited by the union was not a notice within tenets of Section 40(i) of the Employment Act that details the procedure of termination on account of redundancy.
According to the employer, the memo was written in good faith to open dialogue and only for purposes of mental preparation.
“That before declaration of redunduncy, the particulars of the employee have to be mentioned and reason for restructuring given,” the hospital argued.
The hospital’s counsel’s argued that the petitioner was intruding into the management’s and asked the court not to restrain the restructure.
Justice Nzioki wa Makau agreed with the respondent and dismissed the union’s suit.
He, however, asked the parties to consider dialogue and other dispute resolution mechanisms under their Collective Bargaining Agreement (CBA).
While going on with the layoffs, the company noted that the affected employees had either performed poorly or had been involved in unethical practices that were exposed in a recent forensic audit of its operations.
“Besides the staff affected by normal rationalisation, the hospital is disengaging with all staff who have perennial performance issues or were implicated in unethical practices during forensic audits of the hospital’s operations,” it said in a statement.
“It is important to note that while our structure will have less staff in some categories, such as support services, more staff will be engaged in core clinical and nursing services to achieve an optimal balance between the skills and demand from our patients.”