[2022] KEELRC 4057 (KLR)

Angila v Makini School Limited (Cause 586 of 2019) [2022] KEELRC 4057 (KLR) (30 June 2022) (Judgment)

Neutral citation: [2022] KEELRC 4057 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 586 of 2019

M Mbaru, J

June 30, 2022

Between

Edwin Manyasa Angila

Claimant

and

Makini School Limited

Respondent

Judgment

1. The claimant is a male adult and registered teacher. The respondent is registered as an institution of learning and offers preparatory, primary and secondary education in Kenya with campuses in Nairobi and Kisumu.

2. In January, 2019 the respond et employed he claimant as a Kiswahili teacher.

3. In July, 2019 the claimant learnt of a restructuring process and the employee were informed by management of the same which was to affect various departments and the affected employees were advised to fill other vacant positions through memo dated July 23, 2019.

4. The teachers were not affected by the restructuring. His salary was increased through letter dated July 19, 2019 but on the same date on 19th July and on 29 August, 2019 the claimant was served with redundancy notices which was unlawful and discriminatory on the grounds that the teaching fraternity was not affected by the restricting save for him, he had been confirmed in his employment and a letter issued with a salary review and the parallel redundancy notices were issued by the human resource office without justification.

5. The claimant was not aware of the redundancy notices since the school had closed and when he reported back and proceeded to his duty station he learnt from the Deputy Head Teacher that his employment had been terminated over alleged redundancy.

6. The claim is also that majority of employees totalling to 41 declared redundant filed ELRC Cause No 491 of 2019 Julius Lulle Kabelle & 18 others v Makini School Limited and ELRC Cause No 527 of 2017 Vincent Opiyo & 22 others v Makini School Limited over the same subject. These claims were consolidated and pending hearing.The claimant is seeking for orders that;a.a declaration that letters dated 19th July and August 28, 2019 on purported redundancy be declared null and void;b.the claimant be reinstated back to his employment;c.the respondent to pay all accumulated salaries from August, 2019 to date;d.notice paye.12 months compensation; andf.Costs.

7. The claimant testified that upon employment by the respondent he worked well until all employees were called to a meeting and informed that there would be a restructuring affecting various departments but the teaching department was not affected. The claimant was issued with letter dated July 19, 2019 from the Managing Director confirming his employment and a salary review due to his good work performance.

8. The claimant was surprised to receive letters dated 19th July and August 28, 2019 from the human resource office declaring his position redundant. This was after schools had closed and when he reported back to his duty station he learnt of such matter and when he made enquires, he learnt that his employment had been terminated which was unfair and without justification since the managing Director had written to him and confirmed that his employment was secured.

ResponseThe claimant was employed from January 15, 2019. 9. In late 2018 the respondent was wholly acquired by a consortium of international school and upon assessment of the business a decision to restructure and declare a redundancy was taken. The respondent would reorganise the departments including human resource changes affecting various departments and that of teachers

10. Contrary to what the claimant has alleged the redundancy affected the teaching department and as a result 10 teachers were declared redundant. The decision to declare a redundancy was arrived at upon careful consideration and consultations with all stakeholders including the claimant.

11. On January 20, 2019 the respondent gave a redundancy notice to the Labour Officer explaining the justification. The employees were invited to consultative meetings and on July 15, 2019 the respondent issued another notice to the Labour Officer on the redundancy

12. On July 12, 2019 the respondent sent a memo to all employees with details of the affected departments and that in 30 days individual notices would issue which led to notices issued on July 19, 2019 to the affected employees informing them that they were declared redundant. The method that would be adopted was that of Last in First Out (LIFO). All members of the teaching staff who were declared redundant were the one employed last and had not completed the probationary period. The claimant fell in that category and notice issued.

13. The respondent is aware of ELRC Cause No 491 and 527 of 2019 filed by 41 employees declared redundant and it was their case that the respondent had not served notice to the union, Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers to which they were not members. The court has since rendered its ruling and declared the redundancy notices to the 42 employees as unlawful since notice was not served on the union and that a fresh notice is issued.The claim herein is without merit and should be dismissed with costs.

14. In evidence the respondent called Esther Ochieng who has worked with the respondent for the last 23 years in the human resource office and that the claimant was employed as a teacher in January, 2019 and placed on 6 probation. Earlier in the year 20118 the respondent had been acquired by a group of international schools and upon stakeholder consultations a decision was taken that the business be reorganised which was to affect the human resource including teachers.

15. The respondent consulted with the labour office and the employees on the restructuring. Meetings were held and the claimant was aware of the process at all material time.

16. Ms Ochieng also testified that the human resource office is not aware of the claimant’s letter dated July 19, 2019 confirming his employment and an increase of his wages. Even though singed by the managing director, all the restricting matters were being handled by the human resource office upon consultations with the management. The same office cannot have issued two different letters since the claimant was issued with the redundancy notice dated July 19, 2019 and the one dated August 29, 2019 terminating his employment. the principles which applied, the claimant among other 10 teachers were declared redundant and employment terminated.

17. The claimant is seeking reinstatement which cannot issue since the business has since been reorganised and his position does not apply. the claims made should be dismissed with costs.

18. At the close of the hearing, both parties filed written submissions which have been put into account and the single issue for determination is whether there was unfair termination of employment and the remedies sought due.

Determination 19. An employer is allowed pursuant to Section 40 of the Employment Act, 2007 (the Act) to terminate employment lawfully due a redundancy. The law allow the issuance of a general notice to all employees and an individual notice to the individual employee affected by the redundancy. SeeAfrica Nazarene University v David Mutevu & 103 others [2017] eKLR.

20. In the case of Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR the court held that under section 4)(1) (a) and (b) of the Act both required different kinds of notices;It is quite clear to us that sections 40 (a) and 40 (b) provide for two different kinds of redundancy notifications depending on whether the employee is or is not a member of a trade union. Where the employee is a member of a union, the notification is to the union and the local labour officer at least one month before the effective redundancy date. Where the employee is not a member of the union, the notification must be in writing and to the employee and the local labour officer. Section 40 (b) does not stipulate the notice period as is the case in 40 (a), but in our view, a purposive reading and interpretation of the statute would mean the same notice period is required in both situations. We do not see any rational reason why the employee who is not a member of a union should be entitled to a shorter notice.

21. In this case, the claimant confirmed that a general notice issued to all employees and a consultative meeting was held and employees informed of the restructuring.

22. The claimant then received letter dated July 19, 2019 from the managing director confirming his employment and further a review of his wages upwards for good work performance.

23. Even though the redundancy process was to apply the principles of Last in First Out on the letter dated July 19, 2019 issued by the managing director, the claimant was happy that his employment was secured and that despite being employed in January, 2019 and the noted probations period was due to lapse, his services were still required and found necessary.

24. On the claimant’s evidence, his case is that after the July 19, 2019 notice the school closed and he proceeded to his home only to learn later there was a notice dated July 19, 2019 and another dated August 29, 2019 issued by the human resource office to the effect that his position had been declared redundant and that his employment had been terminated.

25. Ms Ochieng for the respondent testified that the letter dated July 19, 2019 issued to the claimant is signed by the managing director of the school, Martin Sherman. She saw this letter and was taken aback but as the human resource officer of the respondent she did nothing. This letter was never recalled and the claimant was left to be.

26. The issuance of the letter dated July 19, 2019 to the claimant by the respondent under the hand of the managing directed created a legitimate expectation that his employment was secured following the redundancy process. The second letter terminating his employment on the same process resulted in unfair termination of employment for the sole reason that where the respondent noted the error, mistake or other matter that led to the issuance of such letter to the claimant, nothing was done to correct the same.

27. From July 19, 2019 until September, 2019 when the claimant reported back to work and was issued with the termination notice, he held the firm belief that he was an employee of the respondent.The court finds there was unfair termination of employment.

28. the claimant is seeking reinstatement. As noted above, redundancy is a lawful cause leading to termination of employment save the due process must be adhered to which was not done in this case. The fact of redundancy is not contested. To reinstate the claimant would not meet the ends of justice in this case.

29. The claimant has sought for alternative remedy of notice pay and compensation.

30. The claimant testified that in a ruling of the court ton October 30, 2019 the court directed the respondent to pay him for 3 months at 3 x 62,000 = 186,000 less tax and which amount the respondent paid at kshs 206, 000. The respondent complied and paid over and above the allocated amounts.

31. Put into context, such included a notice pay hence making the total dues paid to the claimant Kshs 206,000.

32. Putting this into account, compensation due pursuant to the provisions of Section 45 and 49 of the Act, a payment of 2 months wage will adequately compensate the claimant all at Kshs 124, 000.

33. Noting the respondent has complied as directed by the court, each party shall bear own costs.

34. Accordingly, judgement is hereby entered for the claimant against the respondent and compensation awarded at Kshs 124,000 and each party to bear own costs.

DELIVERED IN COURT AT NAIROBI THIS 30TH DAY OF JUNE, 2022. M MBARŨJUDGEIn the presence of:Court Assistant: Peter Kigotho……………………………………………… and ……………………………………..Judgement: Cause No. 586 of 2019 Page 3 of 3