Activist Okiya Omtatah has rushed to the defense of staff at the Energy Regulatory Commission (ERC) who feel the changes conducted by acting Director General Robert Oimeke (pictured) are unlawful.
Here is part of the pleadings he has made on their behalf in Labour Court;
In the year 2016, the respondent developed a new organisation structure based on studies done by two management consultant companies (PKF and KPMG), and advice from the Salaries and Remuneration Commission. The new organisation structure spelt out the tasks and job descriptions associated with each position in the organisation. The new organisation structure was then approved and adopted by the respondent and by other stakeholders.
The new organisation structure created grades for growth within particular positions. For example, whereas in the old structure there was only the ungraded position of Energy Economist, the new structure introduces the grades of Energy Economist III, Energy Economist II, and Energy Economist I.
In the new structure, the default position equivalent to the old position of Energy Economist is Energy Economist III. An employee then has to undergo a suitability interview for purposes of being graded. Where successful, an employee is upgraded to the next level. In the example given above, a successful Energy Economist III would become Energy Economist II.
The respondent has embarked on an exercise to implement the new organisation structure by migrating staff from the old structure. Further and in particular:
Employees who don’t undergo suitability interviews will migrate but will be condemned to stay ungraded at the default level at the bottom in the new structure.
The respondent has an obligation to ensure that during the migration all employees undergo suitability interviews with the view to their being graded.
The employees had the legitimate expectation that the respondent would invite all of them to undergo suitability interviews with the view to their being graded as they migrated to the new organisation structure.
The employees also had a legitimate expectation that the job descriptions and the requirements for the new grades would remain as had been approved by the respondent, and would not be arbitrarily changed to suit certain individuals.
On Friday, 3rd March 2017, Elizabeth Njau, the respondent’s Senior Manager Human Resource and Administration, circulated an email containing an advertisement announcing internal vacancies, stating that the Commission was seeking to fill certain vacancies by interviewing and promoting qualified and suitable employees. She circulated a further email on Monday, 6th March 2017, stating that the commission had “made a change in the Economic Regulation department.”
Shortly thereafter, the petitioner received complaints from some employees of the respondent who were aggrieved that the new organization structure was being implemented selectively and in violation of the law. The particulars of the complaints were that:
Only a part of the positions approved for migration and promotions had been advertised;
The organisation structure approved by the Commission Board was neglected during the job vacancy advertisement;
Job descriptions of the already advertised vacancies had been altered to suit various individuals targeted for promotion, which was against the earlier job descriptions developed with help and advice from the Salaries and Remuneration Commission (SRC), and used to set the salary structure;
Requirements for some positions had been downgraded for undisclosed reasons;
Some positions had not been advertised in some departments for undisclosed reasons yet similar positions had been advertised in other departments.
According to the aggrieved staff members, the following jobs were left out in the advertisement:
Economic Regulations Department
Economic Planner- level 7
Economic Planner II- level 6
Renewable Energy Department
Senior Technical Officer Energy Efficiency II – Level 7
Senior Technical Officer Renewable Energy II – Level 7
Senior Procurement Officer – Level 7
Communications and Public Affairs Department
Corporate Communications Manager – Level 8
Human Resource and Administration Department
Head of Security – Level 7
Director Petroleum – level 10
This position was not advertised yet somebody (that is Senior Manager Petroleum) has contrary to the law been holding this job on acting capacity for more than two years now. This has led to a lot of inefficiencies in implementation of petroleum regulations, especially those dealing with safety and petroleum product quality. Although the Senior Manager Petroleum is supposed to be coordinating issues of safety and quality he has been left to handle boardroom activities hence neglecting these serious issues.
The major issue in this department is that the job descriptions were so manipulated to a point that the Engineers Board of Kenya wrote to the Acting Director General but no action was taken.
Further, according to the aggrieved staff members, all the job descriptions for the advertised jobs were altered.
The allegations were grave because if unqualified persons are assigned duties the quality of work will be compromised and the public interested in the good governance of the respondent will be compromised.
To verify the grave allegations above, the petitioner wrote and hand-delivered a letter to the respondent on 11th April 2017, requesting that, within seven (7) days of the date of the letter, that is by 18th April 2017, the respondent provides the following documents without fail:
The Job Descriptions developed with the advice and help of the Salaries and Remuneration Commission (SRC);
The Commission minutes and all deliberations by the Commission which approved the current migration exercise;
The studies by consultants’ (PKF and KPMG) which informed the formulation of the current organisation structure;
A list of the jobs advertised, the job descriptions, and the communication formulae used to advertise;
Existing job descriptions, that is, the job descriptions of the people already in the organisation’s establishment;
The vacant positions targeted for promotion which have not been advertised and those yet to be advertised..
Vide a letter dated 13th April 2017, and mislabelled as “Without Prejudice” the respondent informed the petitioner that some of the information sought was confidential and could not be released. The respondent replied to the respondent’s letter vide his of 19th April 2017, wherein he stated that the information and documents he required from the respondent were not confidential and cannot disclose any secrets or confidential information about the Commission or its employees. The petitioner stated further that if by close of day on Thursday, 20th April 2017, the respondent still won’t release the information and documentation as requested, he would be left with no option but to move the Court on Friday 21st April 2017, for orders compelling the respondent to release the same.
The new deadline passed without the respondent availing the information sought by the petitioner.
The respondent’s decision to lock out or deny qualified Kenyans the opportunity to compete on merit, by preparing and fronting cronies to take over the positions in the respondent, which is a very strategic government agency, is untenable under the law and must be stopped by this Court enforcing the law.
RELIEFS SOUGHT BY THE PETITIONER
REASONS WHEREFORE Your Petitioner therefore humbly prays for:
- A DECLARATION THAT the respondent is bound by Articles 1, 2, 3(1), 10(2)(a)&(c), 73, 75(1), 1, 2, 3(1), 10(1)&(2)(a)&(c), 27, 41(1), 47, 73, 75(1), and 232(1) (a),(d),(e),(f)&(2)(b) and 259(1) of the Constitution of Kenya, 2010 in respect of staff migration and employees’ promotion.
- A DECLARATION THAT filling the vacancies through favouritism contravenes Articles 1, 2, 3(1), 10(2)(a)&(c), 73, 75(1), 1, 2, 3(1), 10(1)&(2)(a)&(c), 27, 41(1), 47, 73, 75(1), and 232(1) (a),(d),(e),(f)&(2)(b) and 259(1) of the Constitution of Kenya, 2010 and is unreasonable and unlawful and, therefore unconstitutional null and void ab initio.
- A DECLARATION THAT staff migration and employees’ promotion exercise must be conducted in accordance with the job descriptions and organisation structure approved by the respondent.
- AN ORDER QUASHING the impugned staff migration and employees’ promotion exercise.
- AN ORDER QUASHING the following documents:
- The document circulated to staff by email on Friday, 3rd March 2017, by Elizabeth Njau, containing an advertisement announcing internal vacancies; and
- The document circulated to staff by email on Monday, 6th March 2017, by Elizabeth Njau, stating that the Commission had “made a change in the Economic Regulation department.”
- AN ORDER THAT the respondent conducts the staff migration and employees’ promotion exercise in accordance with the job descriptions and organisation structure, and appoints persons to fill vacancies through a process that is competitive, merit based and inclusive as required in law.
- AN ORDER THAT the respondent appoints a substantive holder of the position of Director of Petroleum Department.
- AN ORDER THAT the costs of this suit be provided.
- Any other relief the court may deem just to grant.