[2016] KEELRC 1391 (KLR)
The court found that the respondent failed to comply with the mandatory redundancy procedures under section 40 of the Employment Act, including notification to the Ministry of Labour and payment of terminal dues. The respondent's failure to enter appearance or file a defence meant the claimant's evidence was...
Source-derived case information.
- Citation
- [2016] KEELRC 1391 (KLR)
- Parties
- Claimant: Faith Waithaka; Respondent: Flexenclosure Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 620 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Legal Topics
- Unfair Termination, Redundancy Procedure, Maternity Leave Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Faith Waithaka
Claimant
Flexenclosure Kenya Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination amounted to unfair dismissal under the Employment Act.
- 2 Whether the respondent followed the statutory procedure for redundancy under section 40 of the Employment Act.
- 3 Whether the claimant is entitled to terminal dues, including notice pay, compensation for unfair termination, and untaken leave.
Ratio Decidendi
The court found that the respondent failed to comply with the mandatory redundancy procedures under section 40 of the Employment Act, including notification to the Ministry of Labour and payment of terminal dues. The respondent's failure to enter appearance or file a defence meant the claimant's evidence was unchallenged. The court held that the termination was unfair and awarded the claimant one month's salary in lieu of notice, eight months' salary as compensation for unfair termination, payment for untaken leave, and costs of the suit.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant one month's salary in lieu of notice (USD 3,000).
- The respondent shall pay the claimant eight months' salary for unfair termination (USD 24,000).
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 620 OF 2014
FAITH WAITHAKA………..………….…………………………CLAIMANT
VERSUS
FLEXENCLOSURE KENYA LIMITED……………………. RESPONDENT
JUDGMENT
1. This suit proceeded ex parte after the Court was reasonably persuaded that the respondent though served, failed to enter appearance and file a defence.
2. According to the claimant, she was employed by the respondent in August, 2010 as a Bid Engineer at a salary of USD3000 per month. She worked until 19th November, 2013 when she claimed the respondent terminated her services without any lawful excuse.
3. In her evidence in Court the claimant stated that after working for the respondent for 2 ½ years she went on maternity leave. When she returned she was moved to sales. According to her, the sales had commission plan contract which she signed. According to the commission sales plan she had a target of USD 8 million a year. It was her evidence that she was entitled to leave but did not take leave since she had just returned from maternity leave.
4. It was her evidence that her immediate boss on 19th November, 2013 told her the company was restructuring and that her position would be redundant. She was issued with a letter to that effect but she refused to sign for it since she did not agree with it.
5. It was her evidence that she reported the issue to the Ministry of Labour who told her they were not informed of the redundancy. She was not paid her terminal dues when she was declared redundant.
6. Section 40 of the Employment Act makes provisions for declaration of redundancy. The respondent neither entered appearance nor filed a defence which could have probably rebutted the claimant’s assertions. The Court therefore only has the claimant’s evidence.
7. Redundancy is a form of termination of employment and where it is done contrary to the provisions of the Act the Court will declare such termination unfair.
8. The Court therefore awards the claimant as follows:-
One month’s salary in lieu of notice………………………...……3,000
Eight months salary for unfair termination
of services……………………………………………………24,000
Untaken leave for 21 days……………………………............……..3,000
USD 30,000
Costs of the suit.
9. It is so ordered.
Dated at Nairobi this 8th day of April 2016
Abuodha J. N.
Judge
Delivered this 8th day of April 2016
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge