Kenya: Judges’ law clerks and researchers take Judicial Service Commission to court over contracts

Eight young law clerks and researchers who help judges with research and writing for their decisions, say they are unhappy with changes to their employment conditions made by the Judicial Service Commission and have taken their dispute to court. Two of the eight won the first round when the employment and labour relations court found the JSC acted unlawfully in changing their service conditions and ordered the JSC to pay both the young lawyers damages for unfair labour practices. But the JSC wants to challenge the results, and has asked the court of appeal to excuse them from paying the damages, pending the outcome of the appeal.

SO far the dispute between the eight young lawyers and the Judicial Service Commission has involved two rounds in court. At least one more is on the cards, as the two sides battle to resolve their differences.

It started when the JSC changed the work conditions of the eight, six of them officially designated “law clerks” and two designated “law researchers”. The first six were offered three-year renewable contracts and the researchers were hired on open-ended contracts.

Over time, the JSC changed the arrangements they had with the young lawyers. Among the changes was a decision to pay them less and to restrict their contracts so that they were for just two years and were non-renewable.

Despite their unhappiness with the changes, all eight signed their new contracts, but they also informed their employer that they were not satisfied and that they signed under protest, alleging that they were coerced into accepting the new deal. Then they approached the employment and labour relations court to challenge the new contracts.

In court the law clerks claimed their rights to fair labour practices were violated because the changes to their contracts had been made without consultation and these changes included a reduction of salary from Kshs 210 000 to Kshs 123,750.

The law researchers made a slightly different case, saying that the JSC’s unilateral changing of their contracts from open-ended to fixed term contracts amounted to a violation of their rights to fair labour practices.

The court noted that the JSC admitted “that an employer could not unilaterally vary an employment contract” but if it did so, this would amount to constructive dismissal which left the employee with two options: accept the new contract or sue for constructive dismissal. The JSC argued that the two law researchers had “acquiesced” and waived their right to claim unfair termination of their contracts.

Both groups of young lawyers raised a number of grounds to challenge their new contracts, but the court rejected claims based on unfair administrative action and legitimate expectation for example, and focused on other key questions, most importantly the “common law principle that a unilateral variation of an employment contract is unlawful and amounts to repudiation and/or breach of contract”.

The first six law clerks were on contracts of “definite duration” and as their old contracts expired they were offered new contracts with changed terms and conditions. These new contracts were however “distinct and separate from the initial contracts”. For this reason, the court said it could not find “unilateral variation or violation” of their fair labour practice rights.

But it was quite different in relation to the other two, the “legal researchers”: the JSC did not deny that it “unilaterally varied” their contracts by converting them from indefinite contracts to fixed term contracts of three years. The JSC also “did not suggest that the variation involved consultations with these (researchers)”. Legally the decision was unlawful, not only for being unilateral but also “for lack of consultation, and it therefore amounted to a violation of the right to fair labour practices”.

The JSC in effect wrongfully “repudiated” the initial contracts and awarded damages of Kshs 750 000 to both of the two researchers.

The next step was that the JSC took exception to the outcome. The commission said it wanted to appeal, but while the appeal was pending it wanted to be, in effect, excused from paying damages to the two researchers. The JSC said if the two were to be paid, and the JSC subsequently won its appeal, it would not be possible to get the money back from their employees.

The JSC also referred to the serious problem now being experienced by the judiciary in Kenya, namely severe budgetary cuts by government aimed at the judiciary. When the JSC first made its plea, the court agreed to a stay of execution of payment of damages to the two researchers, provided that the JSC deposited these amounts to the court.

Counsel for the researchers said that instead of complying with these court-imposed conditions, however, the JSC filed another application asking for the previous order to be reviewed and for an extension of time to deposit the required sum. Though the JSC was given yet another extension, there had still been no compliance with the court’s order. This was an abuse of the court process, said counsel for the researchers, as the JSC had been granted significant indulgence by the lower court, “and having failed to comply with the conditions, now seeks orders from this court.”

The three appeal judges who heard the JSC’s application to be excused from paying the damages to the researchers, said that in principle the appeal proposed by the JSC against the labour court’s findings was “arguable” and raised “pertinent questions” that the court would have to address. “We do not consider that these are frivolous or whimsical questions … but so as not to preempt or embarrass the bench that will ultimately determine the intended appeal, we will say no more (on this question)”.

But the JSC had not shown why it alleged that the researchers would be unable to refund their damages if the JSC won its appeal. If anything, the problem lay with the JSC “which has been unable to demonstrate its bona fides by continually failing to deposit the … sums as ordered by the trial court.”

The judges thus decided to dismiss the JSC’s application to be excused from paying the damages awarded by the trial court.

Read Petition 29 of 2016

Read Civil Application 118 of 2017