Elderly KQ's Namibian employee loses Sh15.4m claim over Angolan judgment

Former Kenya Airways manager loses Sh15.4m salary arrears claim over Angolan judgment. [Courtesy]

Caroline Dunaiski flew into Kenya armed with a judgment against Kenya Airways (KQ) from the courts of Belas in Luanda in the Republic of Angola, seeking Sh15.4 million as salary arrears and benefits accrued for 10 years.

The 65-year-old Namibian citizen was a KQ Sales and Station Manager in Angola from August 30 2010, until her termination on May 6 2014.

Dunaiski had filed the foreign judgement before Justice Christine Baari and sought to have it recognised and adopted.

Dunaiski said the Angolan judgment was a final determination of the employment dispute and that KQ had neither appealed nor obtained a review or setting aside of the judgment.

In the said judgement, dated December 22 2021, KQ is directed to reinstate Dunaiski and pay her monthly salary of Sh127,671 (KZ 900,439) until the date of reinstatement.

In her application before Justice Baari, Dunaiski demanded Sh15,305,302.72 (KZ. 108,052,680.00), being the accrued salary arrears and benefits for a period of 10 years from March 2014 until March 30 2024, when she attained the retirement age of 65 years.

She also applied to be paid the said arrears in USD currency at the prevailing currency exchange rate and accrued annual interest rates at 14 per cent from the date of the judgment.

However, Justice Baari dismissed Dunaiski’s claim for adoption and execution of KZ 108,052,680 as a quantified foreign judgment debt.

The judge noted that the foreign Court did not expressly award KZ 108,052,680, nor direct payment of salary up to Dunaiski’s retirement in March 2024.

“The Claimant (Dunaiski), from her evidence, arrived at the sum of KZ 108,052,680 by multiplying her monthly salary of KZ 900,439 by 120 months. That calculation is, evidently, her own computation, as correctly pointed out by the Respondent (KQ) and not an amount expressly quantified by the foreign court,” said Justice Baari.

Justice Baari also dismissed the interest on the unproved sum and declined to award the foreign costs that were not a quantified monetary decree.

According to Dunaiski, KQ employed her at its Angola branch with a monthly salary of Sh127,671 (KZ 900,439), payable in USD through KQ’s Nairobi office at the prevailing exchange rate.

She said that on or about May 6, 2014, KQ unlawfully terminated her employment.

Dunaiski filed a case against KQ on July 1 2015, before the First Section of the Labour Court in Luanda, Angola, where she sought nullification of the dismissal and reinstatement without loss of earnings.

She said that the Angolan court was competent to determine the dispute, as the cause of action arose in Angola and the employment contract was performed in that jurisdiction

Dunaiski said KQ submitted to the foreign court's jurisdiction by filing a defence and participating in the proceedings.

She told Justice Baari that the Angolan court nullified her dismissal and directed KQ to reinstate her without loss of earnings and pay her salary from March, 2014 until the date of reappointment, in accordance with Article 228(3) of the General Labour Law of Angola.

She said the Airline did not appeal or seek a review of the judgment and has not complied with its terms to date.

Dunaiski said that she attained the retirement age of 65 years in March 2024 and was no longer seeking reinstatement because of her age and the subsequent closure of KQ’s office in Angola.

She admitted that she was offered a renewable five-year fixed-term contract whose renewability was at the company’s discretion, subject to performance, and not automatic.

She also confirmed that the issue of a legitimate expectation of renewal did not arise before the Angolan court and that she did not refer to her good performance or awards in her witness statement.

Dunaiski said that she seeks salary arrears and benefits up to March 2024 because she would have attained retirement age then.

KQ, on their part, admitted that the Angolan Labour Court delivered a judgment on December 22 2021, but challenged the competence of that court and the completeness of the judgment presented for adoption in Kenya.

The Airline’s Senior Manager, employee relations and staff welfare Moses Omondi said that Dunaiski breached the terms of her employment contract by granting an unauthorised third-party access to its inventory, thereby compromising its confidentiality obligations towards clients and business partners.

He said that Dunaiski consistently underperformed and was unreliable in the discharge of her duties.

Omondi said that Dunaiski failed to attend a disciplinary hearing, despite prior notice, leading to the termination of her employment in March 2014.

“The Angolan judgment awarded the Claimant (Dunaiski) salary from the date of termination, stated as March 30 2014, until reinstatement, and did not expressly award salary until retirement in March 2024. The Claimant’s fixed-term contract expired on August 30 2015, and contained no automatic renewal clause,” said Omondi.

He said that any salary award arising from the foreign judgment should, in the alternative, be limited to the remaining contractual period between March 30 2014 and August 30 2015, which amounts to Sh2,170,407.

Omondi denied that they have closed its Angola offices or removed its assets to obstruct execution of the judgment.