The Good, the Bad and the Ugly.

A knight and his men return to their castle after a long hard day of fighting.
“How are we faring?” asks the king.
“Sire,” replies the knight, “I have been robbing and pillaging on your behalf all day, burning the towns of your enemies in the west.”
“What?!” shrieks the king. “I don’t have any enemies to the west!”
“Oh, no…” says the knight. “Well, you do now.”

The jury is back and the verdict is in. On Monday December 3rd 2012, the Kenya airways retrenched staff won the battle, but not the war. If anything, the war is far from over and this sordid labor relations dogfight will trundle along as both sides dig in their heels, lick their festering wounds and strategize on what steps to take next to entrench their respective positions.

In my view, there was no clear winner or loser who emerged from Industrial Court Justice James Rika’s judgment. What has resulted is a mish mash of the good, the bad and the ugly side of industrial relations.

The Good:
Justice was dispensed swiftly. Whether it’s because this case filed by the Aviation and Allied Workers Union has generated an inordinate amount of attention and public interest or whether it’s because the Industrial Court has wind beneath its wings, the matter has been dispensed with relatively quickly within less than four months compared to the mind numbingly slow pace that court cases tend to endure. The clear message being sent here is: “there is a new dispensation in town; workers’ rights will no t be trampled upon while we twiddle our thumbs and watch from the sidelines.

The Bad:
1. A man throws his wife out of their home. She goes to court to order reinstatement of her rights to live in her matrimonial home. Court grants her prayers. She goes back. What will the man do? He will make her life utter and living hell. Since he cannot defy a court order, he will simply frustrate her efforts to live comfortably and peacefully through psychological warfare, all of which can be done without any physical assault. For her own sanity, she chooses to move out voluntarily after a few years. The staff that have been reinstated should not belabor under any delusions that life will be hunky dory once they go back to the Embakasi area code. They’ve thrown their toys out of the cot and mummy is not happy. They should brace themselves for everything to be thrown back at them including an extremely stringent application of the performance appraisal tool. Once you have taken your employer to court, all bets (and gloves!) are off and the relationship is often irretrievably broken down.
2. A man throws his wife out of their matrimonial home. Present during the unpleasant exchange is his mother who opens the door wide open to allow for the wife’s safe passage outside the threshold as she is being evicted. Mother:in:law has given her tacit approval. Justice Rika is quoted as saying that alternative avenues were not considered, adding that even when the government, through the office of the Prime Minister, called for further consultations, the advice was ignored by the management. I’ve opined on this before, the board of Kenya Airways has two senior government representatives in the Permanent Secretaries of transport and Finance. They gave their implicit, nay, explicit approval of the redundancy exercise when the program was rolled out and cannot claim to have been ignorant of the potentially explosive consequences of that action. From the management’s perspective the government was involved in the exercise from the get go and it is surprising that the judge allowed a political person’s interventions to be viewed as anything along the lines of bridge building initiatives when it is public knowledge that the government sits on the board of the airline.

The Ugly
These are tough times for companies that have unionisable employees. The ruling will give a very strong impetus to worker’s unions to fight the good fight, finish the race and keep the faith. The unions will fight back against any attempts to maintain labor costs at sustainable levels regardless of companies’ economic (mis)fortunes. What the ruling has done is to essentially inform corporate Kenya that the Industrial Court will question any labor reduction strategies that take into account current and projected operating environments which, in the court’s informed opinion, are strong enough to sustain “cyclical down turns”. The court is essentially a better judge of a company’s assessment of its operating environment than the company itself. That is enough to send jitters down the backs of current and future investors in this country.

Corporate Kenya will be willing the airline to appeal the Justice Rika ruling as it sets a dangerous precedent for industrial relations in Kenya. The sad fact of the matter is that it is largely the insensitive manner in which the retrenchment exercise was conducted that caused the initial angst amongst the workers rather than the actual act of retrenchment itself. Corporate Kenya is replete with examples of mass redundancies that were handled with dignity, inclusiveness and large amounts of empathy. And that should be the lesson to be learnt by shaky investors: Not only should rightsizing take into account the letter of the law, but there should be some humane method to the madness that is bound to emerge once the decision to terminate is made. There is no need to make enemies to the west where none existed before.

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twitter: @carolmusyoka