[2018] KEELRC 1520 (KLR)
The court found that the respondent failed to comply with the mandatory redundancy procedures under section 40 of the Employment Act, 2007, specifically by not issuing the required notices to the claimant and the Labour Officer. The respondent also failed to prove that the redundancy was based on valid and fair...
Source-derived case information.
- Citation
- [2018] KEELRC 1520 (KLR)
- Parties
- Claimant: Esther Ndinda Musyimi; Respondent: H Young & Company (EA) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1320 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant. Termination on account of redundancy declared unfair. Severance pay and compensation awarded.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Redundancy Procedure, Severance Pay, Compensation for Unfair Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Ndinda Musyimi
Claimant
H Young & Company (EA) Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment on account of redundancy was unfair.
- 2 Whether the respondent complied with statutory redundancy procedures under the Employment Act, 2007.
- 3 Whether the claimant is entitled to severance pay and compensation for unfair termination.
Ratio Decidendi
The court found that the respondent failed to comply with the mandatory redundancy procedures under section 40 of the Employment Act, 2007, specifically by not issuing the required notices to the claimant and the Labour Officer. The respondent also failed to prove that the redundancy was based on valid and fair operational requirements as required by sections 43 and 45 of the Act. The court relied on the precedent set in Thomas De La Rue (K) Ltd v David Opondo Omutelema, which established that such notices are mandatory. As a result, the termination was both procedurally and substantively unfair. The claimant was therefore entitled to severance pay and compensation for unfair termination,...
Court Disposition
Judgment for the claimant. Termination on account of redundancy declared unfair. Severance pay and compensation awarded.
Orders
- Respondent to pay claimant severance pay of Kshs 66,000/-
- Respondent to pay claimant compensation of Kshs 198,006/-
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1320 OF 2013
ESTHER NDINDA MUSYIMI....................................CLAIMANT
VERSUS
H YOUNG & COMPANY (EA) LTD.....................RESPONDENT
JUDGMENT
1. Esther Ndinda Musyimi (Claimant) was employed by H Young & Co. (EA) Ltd (Respondent) through a letter dated 30 April 2008 as a Data Officer. The Claimant rose to the position of Administrator.
2. On 8 July 2013, the Respondent wrote to the Claimant to inform her that her employment had been terminated.
3. The Claimant was aggrieved and on 19 August 2013, she moved Court alleging unlawful and unfair termination of employment and/or redundancy and non-payment of terminal benefits.
4. In a Response filed in Court on 6 November 2013, the Respondent pleaded that the termination of the Claimant’s employment was lawful and was on account of redundancy.
5. The Cause was heard on 17 May 2018 when the Claimant testified and closed her case.
6. An attempt by the Respondent to secure an adjournment was declined by the Court, thus the Respondent closed its case without leading evidence.
7. The Claimant filed her submissions on 28 May 2018.
8. The Respondent was directed to file its submissions on or before 15 June 2018. By this morning, the submissions were not on file/record.
9. The Court has considered the pleadings, evidence and submissions and adopted the Issues as identified by the Claimant in her submissions.
Whether termination through redundancy was unfair
10. The termination of contract letter issued to the Claimant did not give any reasons.
11. However, in a reply to the Claimant’s demand letter, the Respondent indicated that the reason for termination was on account of re-engineering of business.
12. That is the line of defence which the Respondent advanced in the Response.
13. Considering that it is the employer which knows the real reason for terminating the services of an employee, the Court will accept that the separation was due to redundancy (operational requirements).
14. In terms of section 40 of the Employment Act, 2007, the Respondent was under an obligation to give the Claimant 1 month written notice. A similar notice should have been sent to the local Labour Officer.
15. It is not in dispute, and the Respondent did not prove or suggest that the notices were given.
16. On account of failure to give the notices and in consideration of the holding by the Court of Appeal in Thomas De La Rue (K) Ltd v David Opondo Omutelema (2013) eKLR that the notice(s) are mandatory, the Court is satisfied that the termination on account of redundancy was procedurally flawed.
17. Pursuant to section 43 and 45 of the Employment Act, 2007, the Respondent was expected to prove that the redundancy was due to operational requirements and that the reasons were valid and fair.
18. The Respondent did not discharge that obligation and the Court finds that the termination was substantively unfair.
Leave
19. Outstanding leave was paid as part of terminal dues after the filing of this Cause.
Salary for July 2013
20. The salary was paid after commencement of the Cause.
Notice pay
21. Notice pay was paid as part of the terminal dues after commencement of the Cause.
22. The Court notes that the Claimant’s dues were used to offset liabilities she owed.
Severance pay
23. Section 40 of the Employment Act, 2007 provides that an employee released on account of redundancy is entitled to severance pay at the rate of 15 days for each year worked.
24. Under this head, the Claimant sought Kshs 66,000/- which figure the Respondent did not interrogate.
25. The Court will allow the same.
Compensation
26. The Court has reached a conclusion that the termination of the Claimant’s employment was unfair.
27. Considering the length of service, the Court is of the view that the equivalent of 6 months gross wages as compensation would be appropriate (gross wage was Kshs 33,001/-).
Conclusion and Orders
28. The Court finds and holds that the termination of the Claimant’s employment on account of redundancy was unfair and awards her
(a) Severance pay Kshs 66,000/-
(b) Compensation Kshs 198,006/-
TOTAL Kshs 264,006/-
29. Claimant to have costs.
Delivered, dated and signed in Nairobi on this 13th day of July 2018.
Radido Stephen
Judge
Appearances
For Claimant Mr. Rakoro instructed by Rakoro & Co. Advocates
For Respondent Ms. Muriu instructed by Wanjiku Muriu & Co. Advocates
Court Assistant Lindsey